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Full text of "The revised statutes of South Carolina."

,()■ 



Digitized by tine Internet Archive 

in 2010 with funding from 

Lyrasis IVIembers and Sloan Foundation 



http://www.archive.org/details/revisedstatuteso02revi 



THE im:\isj:ij .^rAii ti:s 



OF 



SOUTH CAUOLIXA. 



VOL. 2. 



f'ONT.VININi; TIIK 



CODE 01' CIVIL i'iioci:iiri;i:, 



AND 



THE CRIMINAL STATUTES. 



Approved by the General Assembl} ul' is!t;{. 



ALSO 



Tlie ConstitntioHS of the United States and of 

tlie State, 



AND 



THE RULES OF THE SUPRE:\rK AND OF llli: 
CIRCUIT COURTS OF 1MIF STATE. 



COLUMBIA. S. C. 

CHARLES A. CALVO. .IK., .STATi; IMUXTEK, 

18W4. 



V- 



Ui 



ST. 



BINDERY SLIP 

JOSEPH RUZICKA 
Baltimore, Md. Greensboro, N. C. 


Buckram No. O/^l I if 


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Woodell 4338 



CONSTirrTION 



OK THK 



United Statics of AmI'Rr.v 



I'RKAMBLE. 
Objects of tbe Ccnstitutlon. 



Sec. 
1. 
2. 



ARTICLE I. 

Legislative powers, in whom vested. ' 
House of Representatives, liow and by 
whom chosen. QuallBeatlonsof a Rep- ' 
resentative. Representatives and direct 
taxes, how apportioned. Census. Va- 
cancies to be tilled. Power of choosing 
olBcers, and of impeachment. 
Senators, how and by whom chosen. 
How classified. State Executive to make 
temporarv appointments In case, &c. 
Qualifications of a Senator. President 
of the Senate has right to vote. Presi- 
dent pro tcni. and other officers of Sen- 
ate, how chosen. Power to try impeach- 
ment. When President is tried, Chief 
Justice to preside. Sentence. 
Times, &c., of holding elections, how- 
prescribed. One session in each year. 
Membership. Quorum. Adjournments. 
Rules. Power to punish or expel. Jour- 
nal. Time of adjournment limited un- 
less, 4c.. 

Compensation. Privileges. Disqualifl- 
catiim in ceilain cases. 
House to originate all revenue bills. 
Veto. Bill may be pa,ssed by two-thirds 
of each House, notwithstanding, Ac. 
Bill net retunuMl In ten days. Provi- 
sion as to all orders, Ac, except, Ac. 
Powers of Ccmgress. 
Provision as to migration or importation 
of certain persons. Hahcax coriniK. 
Bills of attainder, &c. Taxes, how ap- 
portioned. Xoexportduty. No commer- 
cial preferences. No money drawn from 
Treasury unless, Ac. No titular nobili- 
ty. Officers not to receive presents, un- 
less, &c. 
. states prohibited from the exercise of 
certain powers. 



ARTICLE II. 
SEC. 

1. Presidentand Vice-President, their term 

of office. Electors cf President and 
Vice-President, number, and how ap- 
pointed. Electors to vote on same day. 
Quail llcation of President. On whom 
his duties devolve in ca.se of his removal, 
death, &c. President's compensation. 
His oath. 

2. President to be Commander-in-Chief. 
He may require opinion of, Ac, and 
may pardon. Treaty-making power. 
Nomination of certain officers. \Mien 
Pre.sldent may till vacancies. 

8. President shall comnmnicate to Con- 
gress. He may convene and adjourn 
Congress in case, Ac. Shall receive ani- 
ba.ssadors, execute laws, and commis- 
sion officers. 

4. All civil offic»« forfeited for certain 
crimes. 

ARTICLE III. 
Sec. 

1. Judicial power. Tenure. Compensa- 
tion. 

2. Judicial power, to what cases It extends. 
Original jurisdiction of Supreme Court. 
Appellate. Trial by jury, except-, Ac. 
Trial, where. 

3. Ti-eason deflned. Proof of. Punishment. 



ARTICLE IV. 



Seo. 



1. Credit to be given tt> public Acts, Ac, of 
every State. 

2. Privileges of citizens of each State. Fu- 
gitives from justice t<i be dellvere<l up. 
Persons held U) service, having «>scape<l, 
to be delivered up. 

8. Admission of new States. Power of 
Congress over territory and other prop- 
erty. 

4. Republican fonn of government guar- 
anteed. Each State to be protected. 



CONSTITUTION oF TIIK rM'I'KD S'l'A'I'KS. 



A. I). IWM. 



AHTICLK V. 
Coustltiitlnii, liow uiufiuliMl. I'rovlso. 

AUTICI.K VI. 
rcrtiilii (lcl)ts, Ac, atloptcd. Supremacy of 
Constitution, InMillt'.M and laws ot tlio 
UnlUii states. Oalli to support Constitu- 
tion, by whom taken. No rellKlous test. 

ARTICLE VII. 

What rat iilcaMon shall establish Constitution. 

AMENDMENTS. 

AUTKJ.E 1. 

Ut'll>?iou.s e.stablishnient proliiiiited. Kree- 
doni of speech, of the press, and ri^lit to 
petition. 

ARTICLE II. 
Right to keep anil bear arms. 

ARTICLE III. 
No soldier to be quartered in any house un- 
less, &c. 

ARTICLE IV. 
Right of search and seizure regulated. 

ARTICLE V. 

Provisions concerning prosecutions, trials 
and punishments. Private property not 
to be taken for public ase without, &c. 

ARTICLE VI. 

Furtlier provisions respecting criminal pros- 
ecutions. 



ARTK I,K VII. 
Right of trial by Jury .He«un'd. 

ARTICLE VIII. 
Hull, IhK^and piinlshment.s. 
ARTICLE I.X. 
Rules of construction. 



ARTICLE X. 



Same subject. 



ARTICLE .\I. 



Same subject. 



ARTICLE XII. 
Manner of chixslng President and Vice- 
President. 

ARTICLE .Mil. 
SEC. 

1. Slavery abolished. 

2. Power of Congress, Ac. 

ARTICLE XIV. 
SKC. 

1. Who citizens ; privileges. 

2. Apportionment and basis of representa- 
tion. 

3. Political disabiliti&'. 

4. Validity of public debt ; debts of the 
rebellion, or for slaves, Invalid. 

5. Power of Congress, &c. 



ARTICLE XV, 



SEC. 



1. Right to vote not abridged by race, 
color or previous condition. 

2. Power of Congress, &c. 



We the people of the United States, in order to form a more preamble, 
perfect union, estalilish justice, in.sure domestic traurjuillity, ^yfia^'aif/r \ 
provide for the common defense, promote the general wel- ^^!{J^[- ^^^'- ^ 
fare, and secure the blessings of liberty to ourselves and our 
posterity, do ordain and establish this Constitution for 
the United States of America. 



ARTICi.K I. 

Section 1. .Vll legislative powers horcin grantcil sliall bo vested ugisun i v.« 
in a Congress of tlic United States, whidi shall ('((iisisl of a Si-n- IvtloiV'v'-^t'Hi. 
ate and Jiouse of Kepresentutives. 

Section 2. The llouse of Representatives shall be composed House of 
of members chosen every second year by the ])eople of the .several thU'/iuw nmi 

,,, , 1.1 1 i '■ 1 i.'i . 1 11 1 ii r." *: . bv wiionichoBR'n 

States, and the electors in each State shall luive tlie (iualuieatious ■ 



VI CONSTITUTION OF TIIK TXITED STATKS. 

A. D. IMM. 

"'"■^N^""^ requisite for electors of the most iniim-'rous branch <>f the Statt' 

Li'irishitiuv. 
Qimiiuiutioius No person shall he a Representative who shall not have attained 

uvef*'''"**"''' to the age of twenty-five years, and heen seven years a citizen 
of the United States, and who shall not, when elected, he an 
inhabitant of that State in which he shall he chosen. 
Reprosenta- Representatives and direct taxes shall be apportioned among 

uixes,"ho\v''il^.- the several States which may be included within this Union 

portione<i. according to their respective numbers, which shall be determined 
by adding to the whole number of free persons, including those 
bound to service for a terra of years, and excluding Indians not 
Census taxed, three-fifths of all other persons. The actual enumeration 

shall be made within three years after the first meeting of the Con- 
gress of the United States, and within every subsequent term of ten 
years, in such manner as they shall by law direct. The number 
of Representatives shall not exceed one for every thirty thousand, 
but each State shall have at least one Representative; and until 
such enumeration shall be made, the State of New Hampshire 
shall be entitled to choose three, Massachusetts eight. Rhode 
Island and Providence Plantations one, Connecticut five. New 
York six, New Jersey four, Pennsylvania eight, Delaware one, 
]\[arvland six. Virginia ten. North Carolina five, South Carolina 
five, and Oeorgia three. 
Vacancies t o When vacancies happen in the representation from any State, 

be filled. ^^^^ executive authority thereof shall issue writs of election to 

fill such vacancies. 

powerofchoos- The House of Representatives shall choose their Speaker and 

oMmpeirchment other officei's, and shall have the sole power of impeachment, 
senators, how SECTION 3. The Senate of the United States shall be composed 

chosen* ^^"^^^ ot two Senators from each State, chosen by the Legislature thereof, 
for six years ; and each Senator shall have one vote. 

Howciassifled Immediately after they shall be assembled in consequence of 
the first election, they shall be divided as equally as may be into 
three classes. The seats of the Senators of the first class shall 
be vacated at the expiration of the second year, of the second 
class at the expiration of the fourth year, and of the third class 
at the expiration of the sixth year, so that one-third may be 
state Expcu- chosen every second year ; and if vacancies happen by resign a- 

temp.'l?ary "aV- tioii.' or otherwise, during the recess of the Legislature of any 

Sl^e.'&c"^' ' " State, the Executive thereof may make temporary ai)pointments 
until the next meeting of the Legislature, which shall then till 
such vacancies. 



coNsriTi'i'ioN (H- 'nil-; r\i'i'i':i) s'lwn'.s. vh 

A. I). I«»l. 

Nu iicrsmi slinll lie ;i Si-iialoi' ulio slmll iiol li:i\(' attained to tlic ''~~~-.^— ^ 
a>2:c' ol thirty yt'iirs. and Itocn nine years a citizen of tlic I nited of u s<«nu«or. 
States, and who shall not, when eleeted. he an inhahilant of that 
State for which lie shall he chosen. 

The \'ice-l*resident of the I nited States shall be i'resident of pn^iii.-nt of 
the Senate, hut shall have no vote unless they he e(|iially divided. ngMu!'\<2: '" 

The Senate shall choose their other officers, and also a Presi- Pn-jfiui-nt //ro 

..11 (• ii \r- I) • 1 i 1 ''»".. ttiKl other 

dent /))•(! /nnporc, m the ai)senee ot the Vice-rresKieiit. or wlien i>mcvn of sen- 
he shall exercise the olllce of J*resi(lent of the United States. 

The Senate shall have the sole power to try all iniiK'achnients, , I'ower lo try 

^ 11 1 1 Iiiil>earliiiienli4. 

When sittinof for that purpose, they shall be on oath or athrnia- 

tion. When the President of the United States is tried, the when iti*i- 

, Jent Is tried. 

Chief Justice shall preside: and no person shall be convicted cnief Jasticeto 

,.,,., pieslUe. 

without the concurrence of two-thirds ot the members present. 

Judgment in cases of impeachment shall not extend further sentence, 
than to removal from office, and disqualitication to hold and 
enjoy any office of honor, trust or profit under the United States : 
hut the party convicted shall nevertheless be liable and subject to 
indictment, trial, judgment and punishment, according to law. 

Sectiox 4. The times, places and manner of holding elee- Tiniejt, *c., of 

. . . lioMIn^ e 1 e e- 

tions for Senators and Representatives shall be prescribed in each tinns. uow pn»- 

S<Tilrt'»l 

State by the Ijegislature thereof; but the Congress may at any i. s. statutes, 
time by law make or alter such regulations, except as to the '^'-'' ''• *-'• 
places of choosing Senators. 

The Congress shall assemble at least once in everv vear, and on.- session m 
such meeting shall be on the first Monday m December, unless 
they shall by law appoint a different day. 

Sectiox 5. Each Mouse shall be tiie judge of the elections. M.iniiership. 
returns and qualifications of its own members, and a majority 
of each shall constitute a quorum to do business ; but a smaller g,K,nim. 
number may adjourn from day to day, and may be authorized to A.ijounimeuis. 
compel the attendance of al)sent members in such manner and 
under such penalties as each House. may provide. 

Each House may determine the rules of its proceedings, pun- uuiw: |K.wer 

... , ,.1. , . 1 1 ■ 1 -ii ii to punish or ex- 

ish its members tor disorderly behavior, and, with tlie concur- p^i. 
reuce of two-thirds, expel a member. 

Each House shall keep a journal of its proceedings, and from j„„n„„ 
time to time publish the same, excepting such parts as may in 
their judgment require secrecy : and the yeas and nays of the 
members of either House on any question shall, at the desire of 
one- fifth of those present, be entered on the journal. 




CONSTITUTION OF THE UNITED STATES. 



Neitlu-r House, during the session of Congress, shall, without 
juuniimiit uiii- the fonseiit of tlio other, adjourn for more than three days, nor 
w.iiuiss, "^^ t^, jj„y ,,t],^,,. pi^.^. tjjmj tij.jt ij^ ^viiieii the two Houses shall be 

sitting. 
c<mi|j«»nsati«)n. Skctiox (J. The Senators and Rej)re8entatives shall reeeive a 
compensation for their services, to he ascertained by law. and 
paid out of the Treasury of the United States. They shall in all 
PrivUet'es. cases, except treason, felony and breach of the peace, be privi- 
leged from arrest during their attendance at the session of their 
respective Houses, and in going to and returning from the same ; 
and for any speech or debate in either House they shall not be 
questioned in any other place. 
Disquaiifica- No Senator or Representative shall, during the time for which 

^^in tcrtain j^g ^,^^ elected, be appointed to any civil office under the author- 
ity of the United States which shall have been created or the 
emoluments whereof shall have been increased during such time ; 
and no person holding any office under the United States shall 
be a member of either House during his continuance in office. 

House to origi- Sectiox 7. All Bills for raising revenue shall originate in the 

Bills.* '^^^*^ ^ House of Representatives ; but the Senate may propose or concur 
with amendments as on other Bills. 
Veto. Every Bill which shall have passed the House of Representa- 

tives and the Senate shall, before it become a law, be presented 
to the President of the United States ; if he ajiprove he shall 
sign it. but if not he shall return it, with his objections, to that 
House in which it shall have originated, who shall enter the 
objections at large on their journal, and proceed to reconsider 
it. If after such reconsideration two-thirds of that House shall 
Bill may be agree to jsass the Bill, it shall be sent, together with the objec- 

thircis of each tions, to the other House, by which it shall likewise be recon- 

standing, ic. sidcred, and if approved by two-thirds of that House it shall 
become a law. But in all such cases the votes of both Houses 
shall be determined by yeas and nays, and the names of the per- 
sons voting for and against the Bill shall be entered on the jour- 
Hiii not re- nal of each House respectively. If any Bill shall not be returned 

daj"!" ° "^" by the President within ten days (Sundays excepted) after it 
shall have been presented to him, the same shall be a law, in like 
manner as if he had signed it, unless the Congress by their ad- 
journment prevent its return, in which case it shall not be a law. 
Provision a.s to Every order, resolution or vote to which the concurrence of 

exceptl*^'. ^"^ ' the Senate and House of Representatives may be necessary (ex- 
cept on a question of adjournment) shall be presented to the 



C0N8TITUT1()N OF THE UNITED STATES. 



IX 



I*i-{'si(l(Mit of tlu! ruitcd States ; and hrforc the saino sliall tak<' 
I'ircct shall 1)1' approval by liiiii, or, liciiij,' disapproved hy liiiii, 
shall 1)1! repassed hy two-thirds of the Senate anti House of Rep- 
resentatives, accordini,^ to the rules and limitations prescribed in 
the ease of a Bill. 

SiiCTFox S. The Congress shall have power — 

To lay and collect taxes, duties, imposts and excises to pay 
the debts and provide for the common defense and general wel- 
fare of the United States; but all duties, imposts aiul excises 
shall lie uniform throughout the Ui\ited States; 

To borrow money on the credit of the United States ; 

To regulate commerce with foreign nations, and among the 
several States, and with the Indian tribes; 

To establish an uniform rule of naturalization, and uniform 
laws on the subject of bankruptcies throughout the United 
States : 

To coin money, regulate the value thereof, and of foreign coin, 
and fix the standard of weights and measures ; 

To provide for the punishment of counterfeiting the securities 
and current coin of the United States ; 

To establish post offices and post roads ; 

To promote the progress of science and useful arts, by secur- 
ing for limited times to authors and inventors the exclusive right 
to their respective writings and discoveries ; 

To constitute tribunals inferior to the Supreme Court ; 

To define ami punish piracies and felonies committed on the 
high seas, and offenses against the law of nations ; 

To declare war. grant letters of manjue and reprisal, and make 
rules concerning cai)tures on land and water ; 

To raise and support armies, but no appropriation of money 
to that use shall be for a longer term than two years ; 

To provide and maintain a navy ; 

To make rules for the government and regulation of the land 
and naval forces ; 

To j)rovide for calling forth tlie militia to execute the laws of 
the Union, sui)press insurrections ami lepel invasions ; 

To provide for organizing, armingand disci])lining the militia, 
and for governing such part of them as may be employed in the 
service of the United States, reserving to the States respectively 
the ap])ointment of the officers and the authority of training 
tile militia according to the discijiliiie [irescribed by Congress ; 



A. I>. IWM. 



Powers of 
CoDgrem. 

5WhPat.,317: 
12 Wheat., IIU. 



9 Wheat.. 1 
12 Pet., 72; i 
Whfat., -iSy. 



I Wheat.. liJ: 
12 Wheat.. 213. 



4 (jraj\ S.'iO. 



5 Wheat., IM. 



r> Wheal., 1. 



12 Wheal., 19. 



CONSTITUTION OF THE UNITED STATES. 



A. D. IrtH. 

'^^.'— ^ To exercise exclusive legislation in all cases whatsoever over 
;• 'wtieuu'r^: such district (not exceeding t<;n miles scjuare) as may. hy cession 
liwhiut.. I.V.. ^ J. pjjpti^.ujjir States, and the acceptiince of Congress, become the 
seat of the government of the United States, and to exercise 
like authority over all places purchiused, by the consent of the 
Legislature of the State in which the same shall be, for the erec- 
tion of forts, magazines, arsenals, dock yards, and other needful 
buildings ; and 

To make all laws which shall be necessary and proper for carry- 
ing into execution the foregoing powers, and all other powers 
vested by this Constitution in the government of the United 
States or in any department or otlicer thereof. 
Pnj^-ision as to SECTION 1». The migration or importation of such persons as 
"mpJirtatkfn of any of the States now existing shall think proper to admit shall 
certain persons. ^^^ ^^ prohibited by the Congress prior to the year one thousand 
eight hundred and eight, but a tax or duty may be imposed on 
such importation, not exceeding ten dollars for each i)erson. 
HabeaK corpus. The privilege of the writ of Habeas Corpus shall not be sus- 
4cranch, <5. p^jj^jpfj unless when, in cases of rebellion or invasion, the public 

safety may require it. 
BiiLs of attain- No bill of attainder or ex post facto law shall be passed. 
''aDatrasu- 12 ^^ capitation or other direct tax shall be laid, unless in pro- 
wheat., 213. portion to the census or enumeration hereinbefore directed to be 

Taxes, how , 
apportioned. taken. 

Noexportduty. No tax or duty shall be laid on articles exported from any 

State. 
No commercial No preference shall be given by any regulation of commerce or 
preferences. revenue to the ports of one State over those of another ; nor 
shall vessels bound to or from one State be obliged to enter, 
clear or pay duties in another. 
NO money No money shall be drawn from the Treasury but in conse- 
Treasun*, uT quence of appropriations made by law ; and a regular statement 
less, i<-. _^^^ account of the receipts and expenditures of all public money 

shall be published from time to time. 
No titular no- No title of nobilitv shall he granted by the United States: 
and no person holding any office of profit or trust under them 
offlceni, not to shall, without the consent of the Congress, accept of any present, 

rcoplvc ore **~ • • * 

enta, unless, ic. emolument, office, or title, of any kind whatever, from any 
king, prince or foreign State, 
states pro- SECTION 10. No State shall enter into any treatv, alliance or 

hlbltedfn.rii tlie . .1-. r j'-i*- 

exercise of . . r- confederation : grant letters of marque and reprisal ; coin money : 

n*PetT 25', emit bills of credit ; make anything but gold and silver coin a 

'**'^^™^'^^- tender in payment of debts ; pass any bill of attainder, fryvo.v/ 



('OXSTITrTTON ol' TIIK rxrrKD STATES. xi 

A. I). IWtl. 

I'ltrh) law. (tr law iiii|iaiiiii!j the (thlifjation of ((iiit lacts, or ;,M"iml ""■ • 
any title of ii()I)ility. 

No Stiiti' shall, witlmiii tlii' consi'iit oT the ('on^Mt-s.^, lay any i-> wheat., iisi. 
imposts or duties on iujports oj- exports except what may be 
altsolutely necessary for exe('utin<jj its ins])eetion laws, and the 
lu't produce of all duties and imposts laid hy any State on inj- 
ports or exports shall he for the use of the 'J'reasury of the 
I'nited States ; and all such laws shall he suliject to the revision 
and control of the Congress. 

No State shall, without the consent of Congress, lay any duty 
of tonnage, kee]) troops or ships of war in time of peace, enter 
into any agreement or compact with another State, or with a 
foreign power, or engage in war, unless actually invaded, or in 
such imminent danger as will not admit of delay. 

ARTICLE II. 

Section 1. The executive power shall be vested in a President president and 
of the United States of America. He shall hold his office during ^heir^lTr'm°of 
the term of four years, and, together with the Vice-President "'■""'• 
chosen for the same term, be elected as follows : 

Each State shall appoint, in such manner as the Legislature Electors of 
thereof may direct, a number of Electors equal to the whole vice - President! 
number of Senators and Representatives to which the State may how'appoi'nted.'' 
l)e entitled in the C-ongress : but no Senator or Representative, 
or person holding an otiice of trust or profit under the United 
States, shall be appointed an Elector. 

The Congress may determine the time of choosing the Electors, Electors to vote 
and the day on which they shall give their votes ; which day "'tTs'sta^utra 
shall be the same throughout the United States. ^^^' ^• 

No person except a natural born citizen, or a citizen of the Quaiiucations 
Ignited States at the time of the adojjtion of this Constitution, *''''"*'«'«"'• 
shall be eligible to the oltice of President ; neither shall any per- 
son be eligible to that office who shall not have attained to the 
age of thirty-five years and been fourteen years a resident within 
the LTnited States. 

In case of the removal of the President from ollice, or ctf his on whom his 
death, resignation, or inability to discharge the j^owers and duties In case oV h Vs 
of the said office, the same shall devolve on the Vice-President, A-."" "' *^" '' 
and the Congress may bylaw provide for the case of removal, ,-,^-|-^j'^^"'**' 
death, resignation, or inability, both of the President and \' ice- 
President, declaring what officer shall then act as President, and 



XII CONSTITUTION OF THE UNITED STATES. 

A. D. 1894. ~ " 

' V ' such ortii-er shall ai-t accorUin<rly until the disability be removed, 

or a President shall be elected. 

Prt'sideui's 'JMie I'resident shall, at stilted times, receive for his services a 

u. 8. statiiu-s, t'ompens4itioii wiiicli shall neither be increased nor diminished 

i™. !i:iKj:i,i),. ^|j,,.j,jg ^^jj^, period for which he shall have been elected, and he 

shall not receive within that period any other emolument from 

the United States or any of them. 

Before he enter on the execution of his office, he shall take the 

following oath or atllrmation : 

Hisoath. "I do solemnly swear (or affirm) that I will faithfully execute 

the office of President of the United States, and will, to the best 

of my ability, preserve, i)rotect and defend the Constitution of 

the United States. " 

President to SECTION "2. The President sliall be Commaiuler-in-Cliief of the 

in-chie™'*° ^^' Army and Navy of the United States, and of the Militia of the 

several States when called into the actual service of the United 

Hemayrequire States ; he mav require the opinion, in writins:, of the principal 

opinion of, 4c.. „^ . i "^ p i ,• i . , "■ i • ^ 

and maj pardon orncer 111 eacli of the executive departments upon any subject 
relating to the duties of their respective offices, and he shall 
have power to grant rejjrieves and pardons for offenses against 
the United States, except in cases of impeachment. 

Treaty-making He shall have power, by and with the advice and consent of 

power. 

1 cranch, 137; the Senate, to make treaties, provided two-thirds of the Senators 
pfC'^V 13 present concur; and he shall nominate, and by and with the 
Pet., 4io. advice and consent of the Senate shall appoint. Ambassadors, 

Nomination of i i ■ ^ c • • 

certain officers, other public Ministers and Consuls, Judges of the Supreme 

Pe\.fm^""^'* Court, and all other officers of the United States whose appoint- 
ments are not herein otherwise provided for. and which shall be 
estal)lislied by law ; but the Congress may by law vest the appoint- 
ment of such inferior officers as they think proper in the Presi- 
dent alone, in the Courts of law, or in the heads of departments. 
When Presi- The President shall have power to lill up all vacancies that may 

vacancies.'^ happen during the recess of the Senate, by granting commis- 
sions which shall expire at the end of their next session. 
President shall SECTION 3. lie shall from time to time give to the Congress 

Congress. information of the state of the Union, and recommend to their 

consideration such measures as he shall judge necessary and expe- 

He may con- diciit ; he mav. on extraoi-dinary occasions, convene both Houses, 
vene and ad- . " . i- i 

joam Congress, or either of them, and in case of disagreement l)etween them 

in case, ic. ,,,. ,.,. ""i i- ^i 

Shall n-reiv ^^'**' res^jcct to the time of adjournment he may adjourn them 
ambassadors, ^q 8^.]^ time JUS hc shall think proper : he shall receive Ambassa- 

execute laws, i i 7 

and commission Jors and Other i)ublic Ministers ; he shall take care that the laws 

officers. * ' 



CONSTITUTION OF THE UNITKD STATES. xni 

" " A. I). IttU. 

l)t( faith fully iixec-iitod. jiiid sliall (■(iintiiissiuii all I lie olVicc rs of ' .'""^ 
tlu' I'liited Stati-s. 

Skctiox 4. Till! I'li'sidcnt, X'iru-rivriiduiiL, and all <ivil otliccrs ah <ivii <.nic«* 
• >f the United States, shull l)c removed from ofTici' on inipcHc-li- [u{'u'[!rj',',^!^'' '*''"' 
iiu'iit for, and conviction of, treason, hrihcry, <>i- other lii^di crimes 
and misdemeanors. 

AirnCLK III. 

Se(^tion 1. Tlie judicial ])ower of the United States shall be judk-iai power, 
vested in one Supreme Court and in such inferior Courts as the 
Congress may from time to time ordain and estahlish. The 
.Indices, l)otli of the Supreme and inferior Coui'ts, shall hold 
their ottices during good behavior, and shall, at stated times. Tenure, 
receive for tlieir services a compensation whicli shall not be compensation, 
diminished dnring their continuance in office. 

Skctiox 'L The judicial i)o\ver shall extend to all cases, in law judicial power, 
and ecpiity, arising under this Constitution, the laws of the extendi."^'^ " 
United States, and treaties made, or which shall be made, under ^-Daii..««;i 

' Cranch, Vii ; 11 

their authority ; to all cases aflfectinsj Ambassadors, other public wheat, -it;:; i 

•^ ' * ^ P p t., 511 ; Vi 

Ministers, and Consuls; to all cases of admiralty and maritime p<''''''^^: -"^ Pet- 

. . ' , - 1. See amenrt- 

jurisdiction ; to controversies to which the United States shall be luent xi. 
a party ; to controversies between two or more States ; between a 
State and citizens of another State ; between citizens of diiferent 
States ; between citizens of the same State claiming lands under 
grants of different States ; and between a State, or the citizens 
thereof, and foreign States, citizens or subjects. 

In all cases affecting Ambassadors, other public Ministers and on^rinai jui-is- 
Cousuls, and those in which a State shall be a party, the Supreme preine"court'. " 
Court shall have original jurisdiction. In all the other cases before 
mentioned, the Supreme Court shall have appellate jurisdiction, .\i.|viiate. 
both as to law and fact, with such exceptions and under such , yhea'u'fibi!*^" 
regulations as the Congress shall make. 

The trial of all crimes, except in cases of impeachment, shall Trial i>>jury, 
be by jury ; and such trial shall be held in the State where the ^^^^^ 
said crimes shall have been committed ; but when not committed 
within any State, the trial shall be at such place or places as the Trini, when-. 
Congress may by law have directed. 

Skction 3. Treason against the United States shall consist rn>a.s<m .itiin.-.i 
only in levying war against them, or in adhering to their enemies. Daii.'^"'lk "' ' ' 
giving them aid and comfort. Xo person shall be convicted of 
treason unless on the testimony of two witnesses to the same overt Proof of. 
act, or on confession in open Court. ■* f"™"<^''' ■'^- 



Paubhraent of. 



xiv CONSTITrTION OF THE UNITED STATES. 

A. D. 1H9I. 

The Congress shall have power to declare the pu!ii.«<hment of 
treason, but no attainder of treason shall work corrui>tion of 
blood, or forfeiture except during the life of the person attainted. 

AKTICLK IV. 

Credit to pub- Sectiox 1. Full faith and credit .•ilmll be given in each State 
"veo^stafe." "' ^^ ^^^ public Acts, rccords and judicial proceedings of every other 
i-« ^f^'VsS^ State. And the Congress may by general law prescribe the man- 
5<i: ' 7 (ranch, ner in which such acts, records and proceedings shall be proved, 

vn ; 3 Wheat., 1 & 1 ' 

*«- and the eifect thereof. 

Privileges of Sectiox 2. The citlzens of each State shall be entitled to all 

fitizens of each ... . . . . , . . . , , o 

Stole. privileges and immunities of citizens in the several States. 

:iGny°zT6. "' A person charged in any State with treason, felony, or other 
Fugitives from Crime, who shall flee from justice, and be found in another State, 
liveredup. shall, on demand of the executive authority of the State from 
which he tied, be delivered up, to be removed to the State hav- 
ing jurisdiction of the crime. 
Persons held No pcrson held to service or labor in one State, under the laws 

to strvif*^ hflv- 

ma escaped, to thereof, escaping into another shall, in consequence of any law 
U.S. stotutesi ^r regulation therein, be discharged from such service or labor, 
iepet.',^'*'^* but shall be delivered up on claim of the party to whom such 
service or labor may be due. 
Admission of Sectiox 3. New States may be admitted by the Congress into 
this Union : but no new State shall be formed or erected within 
the jurisdiction of any other State, nor any State be formed by 
the junction of two or more States, or parts of States, without 
the consent of the Legislatures of the States concerned as well as 
of the Congress. 
Powerof Con- The Congress shall have power to dispose of and make all need- 
tory and other ful rules and regulations respecting territory or other property 
prope y. belonging to the United States ; and nothing in this Constitution 

shall be .so construed as to prejudice any claims of the United 
States, or of any particular State. 
Republican SECTION 4. The United States shall guarantee to every State 
III™ t' fuaranl in this Union a republican form of government, and shall protect 
tolte' proui^ted! ^^^h of them against invasion, and on application of the Legis- 
lature, or of the Executive (when the Legislature cannot be con- 
vened), against domestic violence. 

ARTICLE V. 

constitution. The Cougress, whenever two-thirds of both Houses shall deem 
iiow amended, j^ necessary, shall propose amendments to this Constitution, or, 



CONSTITUTION OF THE UNITKT) STATES. xv 

on tlie application of the r>egislatures of two-thirds of the several 
States, sliall call a C«»nventi<tn for ])r(»pf>sin«: ainendnu-nts, which, 
in either c;ise, shall he valid to all intents and purposes as part 
of this Constitution when ratified by the Legislatures of three- 
fourths of tlie sevenil States, or by Convoiitinns in three-fourths 
thereof, as the one or the other mode of ratification may be pro- 
posed b}' tlie Congress : Provided, That no amendment which Provbu. 
may be made prior to the year one thousand eight hundred and 
eight shall in any manner atfect the first and fourth clauses in 
the ninth Section of the first Article ; and that no State, without 
its consent, sluill be deprived of its equal suffrage in the .Senate. 

AETTCLE VI. 

All debts contracted and engagements entered into before the certatn debts, 
adoption of this Constitution shall be valid as against the United 
States under this Constitution as under the Confederation. 

This Constitution and the laws of the United States which supremacy ..r 
shall be made in pursuance thereof, and all treaties made or treaties," a n'd 
which shall be made under the authority of the United States, unaed aates!" * 
shall be the supreme law of the hmd, and the Judges in every 
State shall be bound thereby, anything in the Constitution or 
laws of any State to the contrary notwithstanding. 

The Senators and Representatives before mentioned, and the oath t o snp- 
members of the several State Legislatures, and all executive and uon, by"whom 
judicial officers, both of the United States and of the several '^^^ 
States, shall be bound by oath or affirmation to support this Con- 
stitution; but no religious test shall ever be required as a quali- No reugious 
fication to any office or public trust under the L'nited States. 

AirnCLE VI 1. 

The ratification of the Conventions of nine States shall be what ratiflca- 
sufficient for the establishment of this Constitution between the ITsh'^cStol 
States so ratifvins: the same. "''°' 



XVI CONSTITUTION OF THE UNITED STATES. 

A. D. IMll. 

^-^^ AKTICLKS IN AIMilTlON T(l, AM) AMKNKMKNT (iK, TIIK (ON- 

STITLTIOX OF TUE LMTKl) STATKS. 

Proposed by C-ongress, an«l Katilicd l)y the U'^islatiirt's (if llir 
Several Sta(<s, riirsiiaiit to tin' Fifth Arliclr id' the (Irii^iiial 
(oust it lit ion, 

AKTICLE I. 

Reiifrious Congress shall make no law respecting an estjiblishinent of 

Tr^oh'^b "ted: religion, or prohibiting the free exercise thereof: or abridging 

epetihf of"'t h e the freedom of speech or of the press ; or the right of thejjeople 

to^tition/''^*^' peaceabl}' to assemble, and to petition tlie government for a 

redress of grievances. 

ARTICLE II. 

Right to keep "^ ^^'^^^ regulated militia being necessary to the security of a 
and bear arms, fj.^^ State, the right of the people to keep and bear arms shall 



not be infringed. 



ARTICLE III. 



No soldier to ^^ sokUer shall in time of peace be quartered in any house 
^y'^iwus^un" without the consent of the owner, nor in time of war but in the 
leas, 4c. manner to be prescribed by law. 

ARTICLE IV. 

Rightofseareh ^^^ right of the people to be secure in their persons, houses, 
^"Jll^'^^® '^e- papers, and effects, against unreasonable sejirches and seizures 
~3 crdneh,l48; shall not be violated, and no warrants shall issue but upon prob- 
able cause, supported by oath or affirmation, and particularly 
describing the place to be searched, and the person or things to 
be seized. 

ARTICLE V. 

Provisions con- Xo person sliall be held to answer for a capital or othcnvise 

aiSons, tri^il" infamous crime unless on a presentment or indictment of a 

ments."" '''^' ^iTand Jury, except in cases arising in the land or naval forces, 

~~2~sumner71i97 or in the militia, when in actual service in time of war or public 

danger ; nor shall any person be subject for tlie same offense to 

be twice put in jeopardy of life or limb ; nor shall be compelled in 

any criminal case to l)e a witness against himself, nor be deprived 

of life, liberty or property without due process of law ; nor shall 



COXSTITrTTOX OF TIIK rXTTi:]) STATES. xvii 

A. D. \xiH. 

iiiivate property be taken fur |tul)lic use without just compensa- "" '' 

' . ' ^ •' ' "' ^ ITlvnt.- pn.|.- 

tioll. crty ni.l to !«• 

tukc-n for public 
UM\ wltboul, Ac 

Airi'K'IJ-: VI. 7Pet..m 

In all criminal prosecutions the accused shall enjoy the right Further prrjvi- 
to a speedy and public trial by an impartial jury of the State pllJni'in"T''pr'w«^ 
and district where the crime shall have been committed, which '"""'"*• 
district shall have been previously ascertained by law, and to be 
informed of the nature and cause of the accusation ; to be con- 
fronted with the witnesses against him ; to have compulsory 
])rocess for obtaining witnesses in his favor, and to have the 
assistance of counsel for his defense. 

ARTICLE VII. 

In suits at common law, where the value in controversy shall Right of ihui 
exceed twenty dollars, the right of trial by jury shall be pre- *'VpTt'*I«^''5 
served, and no fact tried by a jury shall be otherwise re-examined Gray, lu. 
in any Court of the United States than according to the rules of 
the common law. 

ARTICLE VIII. 

Excessive bail shall not be required, nor excessive fines imposed, Ban. ones and 

. , ■ n- 1 punishments. 

nor cruel and unusual jninishmeuts innicted. "Icray. 4*2. ~ 

ARTICLE IX. 

The enumeration in the Constitution of certain rights shall not nuie of eon- 
be construed to deny or disparage others retained by the people. *""^ 

ARTICLE X. 

The powers not delegated to the United States by the Consti- same subject, 
tution, nor prohibited by it to the States, are reserved to the ^uray, -.'Ois. 
States respectively, or to the people. 

ARTICr.K XL 

The judicial power of the L'nited States shall not be construed same subject, 
to extend to any suit in law or equity commenced or prosecuted *Daii.,»re. 
against one of the United States Ijy citizens of another State, or 
by citizens or sul)jects of any foreign State. 

2—x 



xviii roNSTITl'TlON OF THE UNITED STATES. 

A. D. ISUJ. " 

^- ' AUTICLK Xll. 

Mnnnor of The Electors shall meet in tluir respective States, and vote by 
rtcn^aiui \wv'- ballot for PrcsldcTit and Vifo-l'residont. one of whon), at least, 
pn-siduut. shall not be an inhabitant of the same State with themselves ; 
they shall name in their ballots the person voted for as President, 
and in distinct ballots the person voted for as Vice-President, 
and they shall make distinct lists of all persons voted for as Pre- 
sident and of all persons voted for as Vice-President, and of the 
number of votes for each, which lists they shall sig^n and certify 
and transmit sealed to the seat of the government of the United 
States, directed to the President of the Senate ; the President of 
the Senate shall, in presence of the Senate and House of Represent- 
atives, open all the certificates and the votes shall then befounted ; 
the person having the greatest number of votes for President 
shall be the President, if such number be a majority of the whole 
numl^er of Electors appointed ; and if no person have such ma- 
jority, then from the persons having the highest numbers, not 
exceeding three on the list of those voted for as President, the 
House of Representatives shall choose immediately, by ballot, 
the President. But in choosing the President, the votes shall be 
taken by States, the representation from each State having one 
vote ; a quorum for this purpose shall consist of a member or 
members from two-thirds of the States, and a majority of all the 
States shall be necessary to a choice. And if the House of Rep- 
resentatives shall not choose a President, whenever the right of 
choice shall devolve upon them, before the fourth day of March 
next following, then the Mce-President shall act as President, as 
in the case of the death or other Constitutional disability of the 

Same subject. President. The person having the greatest number of votes as 
Vice-President shall be the Vice-President, if such number be a 
majority of the whole number of Electors appointed, and if no 
person have a majority, then from the two highest numbers on 
the list the Senate shall choose the Vice-President ; a quorum 
for the purpose shall consist of two-thirds of the whole number 
of Senators, and a majority of the whole number shall be neces- 
sary to a choice. But no person Constitutionally ineligible to the 

Same subject, office of President shall be eligible to that of Vice-President of 
the United States. 

ARTICLE XIII. 

Slavery aboi- SECTION 1. Xoitlicr slavery nor involuntary servitude, except 
^ ■ as a punishment for crime whereof the party shall have been duly 



CONSTri'l'TIoX OF 'I'lfK rXITKI) S'I'ATKS. \ix 

A.I). l^'.M. 

convicted, shall cxi.'^t within the I'liilcd States or any place ,suli- ^~^'^ < 
ject to tlieir juri.^^dietioii. 

Skctiox '2. Congress shall have power to enforce this Article 
l>y appropriate legishitioii. 

ARTICLE XIV. 

Section 1. All persons horn or iiatui'alized in the United who are citi- 
State.s, and suhjeet to the juri.sdiction thereof, are citizens of the ^*^°*'' 
United States, and of the State ^vherein they reside. No State 
shall make or enforce any law which shall abridge the privileges Prtwieges. 
or immunities of citizens of the United States ; nor shall any 
State deprive any person of life, liberty or property without due 
process of law ; nor deny to any person within its jurisdiction 
the equal protection of the laws. 

Section 2. Eepresentatives shall be apportioned among the Apportionment 
several States according to their respective numbers, counting uon.'^"^'^^" 
the whole number of persons in each State, excluding Indians 
not taxed ; but when the right to vote at any election for the 
choice of Electors for President and Vice-President of the United 
States, Representatives in Congress, the executive and judicial 
officers of a State, or the members of the Legislature thereof, is 
denied to any of the male inhabitants of such State, being 
twenty-one years of age and citizens of the United States, or in 
any way abridged, except for jiarticipation in rebellion or other 
crime, the basis of representation therein shall be reduced in the Basisofrepre- 

sentatlon. 

proportion which the number of such male citizens shall bear to 
the whole number of male citizens twenty-one years of age in 
such State. 

Section 3. Xo person shall be a Senator or Representative in Pouticai dis- 
Congress, or Elector of President and Vice-President, or hold 
any office, civil or military, under the United States, or under 
any State, who, having previously taken an oath as a member of 
Congress, or as an officer of the United States, or as a member 
of any State Legislature, or as an executive or judicial officer of 
any State, to support the Constitution of the United States, shall 
have engaged in insurrection or rebellion against the same, or 
given aid or comfort to the enemies thereof. But Conurress mav ^•','" 9 X," ' "' 

'^ ' • p4)lltical dlsabll- 

by a vote of two-thirds of each House remove such disability. "'^s- 
Section 4. The validity of the public debt of the United validity of me 

. . ^ public debU 

States autliorized by law, including debts incurred for jiayment 
of pensions and bounties for services in suppressing insurrection 
or rebellion, shall not be questioned. Put neither the United 




CONSTITUTION OF THE UNITED STATES. 



States nor any State shall assume or ]):iy any debt or obligation 
n'»)ciii(".ii'..r for Incurred in aid of insurrection or rebellion a;:ainst the United 
States, or any claim for the loss or emancipation of any slave; 
but all such debts, obligations and claims shall be held illegal 
and void. 
PowerofCon- SECTION 5. The Congress shall have })o\ver to enforce, by 
appropriate legislation, the provisions of this Article. 

ARTICLE XV. 

uiRht to vote Sectiox 1. The right of citizens of the United States to vote 
mV?^''oiorf or shall not be denied or abridged by the United States or by any 
pre\'ious condi- g|;ate on account of race, color, or previous condition of servi- 
tude. 

Sectiox 2. The Congress shall have power to enforce this 
Article by appropriate legislation. 



CONSTITUTION 



OF THE 



Commoiiweallli uf Suulli Carolina. 



W'c, flie jieople of the Stale, of Soutli Carulina, in Co?ivetitiun Declaration of 
assembled, (Jrateful to Almighty God for this opportunity'^''*'^' 
deliberately and peaceably of entering into an explicit and 
solemn compact with each other, and forming a new Con- 
stitution of civil government for ourselves and posterity ; 
recognizing the necessity of the protection of the peojjle in 
all that pertains to their freedom, safety and tranquillity, 
and imploring the direction of the Great Legislator of the 
Universe, do agree ujion, ordain and establish the following 

Docltiration of Rights and Form of (iovcrnmeiit as the Consti- 
tution of the Commonwealth of .South Carolina. 

ARTICLE I. 

DECLARATION OF EIGnXS. 

iSECTiOX 1. All men are born free and equal — endowed l)y their Equoutyof men 
Creator with certain inalienable riglits, among which are the 
rights of enjoying and defending their lives and liberties, of 
ar(|uiring, possessing and jirotecting property, and of seeking 
and ubtaiuing their safety and happiness. 

Skctiok 2. Slavery shall never exist in tliis State; neither siavory pr> 
shall involuntary servitude, except as a punishment for crime, 
wjiereof tlie party shall have been duly convicted. 

Sections. All political power is vested in and derived from political ixwer 
the people only ; therefore they have the right, at all times, to JiJiopk». * ° ^^^ 
modify their form of government in such manner as they nniy 
deem expedient, when the public good demands. 

Section 4. Every citizen of this State owes i)aramount alle- parainount 
Cfiauce to the Constitution and Government of the United States. ""<'if'""^'*-'- 
and no law or ordinance of this State in contravention or sub- 
version thereof can have anv binding force. 



XXII CONSTlTrTTON OF SOUTH CAROLINA. 

A.D.16M. ~ 

^■■"' — V ' Sectiox 5. This State shall ever icinain a iiionilttT of tlie 

dissuiubk'. Anu'ru-aii I moii, ana all attenij)ts. iroiii whatsoever Kource, or 

upon whatever pretext, to dissolve tJie said Union shall be 

resisted with the whole power of the State. 
Right of ppti- Skctiox G. The right of the people peaceahlv to af-senilile to 

tltm iind discus- li. r ai i i i. j. ..• ."i /^. ^ 

sion. consult tor the coninion good, and to petition the Government, 

or any department thereof, shall never be abridged. 
Froedom of Skctiox 7. All persoiis may freely speak, write and puljli}f.h 

tbe7>rcss. their sentiments on any subject, being resijonsible for the abuf^e 

of that right ; and no laws shall be enacted to restrain or abridge 
the liberty of speech or of the press. 

Trials for libel. SECTION )S. In prosecutions for the publication of papers inves- 
tigating the official conduct of officers or men in public capacity, 
or when the matter published is proper for public information, 
the truth thereof may be given in evidence ; and in all indict- 
ments for libel the jury shall be the judges of the law and the 
facts. 
Freedom of SECTION 0. No person shall be deprived of the right to worship 

conscience. q^^ according to the dictates of his own conscience : Provided, 

That the libert}' of conscience hereljy declared shall not justify 

practices inconsistent with the peace and moral safety of society. 

ReUgiouswor- SECTION 10. Xo form of religion shall be established by law, 

s IP pro c . ^^^^j. .^ g]jg^]] i^g |;|^g duty of the General Assembly to pass suitable 
laws to protect every religious denomination in the peaceable 
enjoyment of its own mode of worship. 
Trial by Jury. Skctiox 11. The right of trial by jury shall remain inviolate. 

Personal rights. SECTION 12. Xo person shall be disqualified as a witness, or be 
prevented from acquiring, holding and transmitting proi)erty, or 
be hindered in acquiring education, or be liable to any other 
punishment for any offense, or be subjected in law to any other 
restraints or disqualifications in regard to any jiersonal rights, 
than .such as arc laid upon others under like circumstances, 
nifthts of ac- Section 13. No person shall be held to answer for any crime 

cused pcnsons. ^^ otTensc Until the same is fully, fairly, ]ilainly, substantially 
and formally described to him ; or be conijielled to accuse or 
furnish evidence against him.self ; and every person shall have a 
right to })r()duce all proofs that may be favorable to him, to meet 
the witnesses against him face to face, to have a speedy and 
public trial by an impartial jury, and to l)e fully heard in his 
defen.se by himself or by his counsel, or by both, as he may elect. 
Expnidfiirio Section 14. No person shall be arrested, imprisoned, despoiled 

laws prohibited. ^^^^ dispossessed of his property, immunities or i)rivileges, put out 



CONSTITUTION OF SOUTH CAROLINA. xxiii 

A. D. IK.il. 

of the prod'ctioii of tlic law. exiled, or ilepriveij of liis life, liii- ' • 
erty or estate l)ut l)y the jii(l_i;iiieiit of his [jeers or the law of the 
himl. Ami the (ieiieral Assenilily shall not enact any hiw tliat 
shall subject any person to [innishment without trial by jury ; 
nor shall ho ho punished but by virtue of a law already estab- 
lisiied or promulgated prior to the olTense and le<,'ally apjilied. 

Section 1'). All Courts shall be public, and every person, for Publicity ..f 
any injury that lie may receive in his lands, goods, person or 
rei)utation, shall have remedy by due course of law and justice 
iulministered without unnecessary delay. 

Skctiox 16. All persons shall, before conviction, l^e bailable uight of bail, 
by sufficient sureties, except for capital offenses when the proof 
is evident or the presumption great ; and excessive bail shall not 
in any case be required nor corporal punishment inflicted. 

Sectiox 17. The privilege of the writ of liaheaH cor]nis shall Uaheascorpus. 
not be suspended except when, in case of insurrection, rebellion 
or invasion, the public safety may require it. 

Sectiox 18. No person after having been once acquitted by a Not triable 

. . * . twice for the 

jury shall again, for the same offense, be put in jeopardy of his same offense. 

life or liberty. 

Section 19. All offenses less than felony, and in which the Punishments, 
punishment does not exceed a line of one hundred dollars, or 
imprisonment for thirty days, shall be tried summarily before a 
Justice of the Peace or other officer authorized by law, on infor- 
mation under oath, without indictment or intervention of a 
CJrand Jury, saving to the defendant the right of ajipeal ; and 
no person shall be held to answer for any higher crime or offense 
unless on presentment of a Grand Jury, except in cases arising 
in the land and naval service, or in the militia when in actual 
service in time of war or public danger. 

Section 20. No person shall be imprisoned for debt, except imprisonment 
in cases of fraud ; and a reasona1)le amount of property, as a 
homestead, shall be exempted from seizure or sale for the payment 
of any debts or liabilities, except for the payment of such obliga- 
tions as are provided for in this Constitution. 

Section 'Z\. No bill of attainder, ex pout facto law, nor any obiignOon of 
law impairing the obligation of contracts, shall ever be enacted ;*^' 
and no conviction shall work corruption of blood or forfeiture of 
estate. 

Section 'I'Z. All persons have a right to be secure from uniea- Right of search, 
sonable searches or seizures of their })ersons, houses. p)i))ers or 
possessions. All warrants shall be supported by oath or atlirma- 



xxiv CONSTITUTION OF SOUTH CAHOLIXA. 

A. D. iH'M. 

' •■ tioii, and the order of the warrant to a civil ofticer U) make 

searcli or seizure in suspected phiccs, or to arrest one or more 
suspected persons, or to seize their property, shall be accom- 
panied with a special designation of the personB or objects of 
search, arrest or seizure : and no warrant shall be issued but in 
the cases and with the formalities prescribed by the laws. 

Right of way. SECTION :2:J. Private property shall not be taken or applied 
for public use, or for the use of corporations, or for private use, 
without the consent of the owner or a just compensation being 
made therefor : Provided, however. That laws may be made 
securing to persons or corporations the right of way over the 
lands of either persons or corporations, and, for works of ijiternal 
improvement, the right to establish depots, stations, turnouts, 
etc.; but a just compensation shall, in all cases, be first made to 
the owner. 

Suspension of Sectiox '^i. The power of suspending the laws, or the execu- 

^^^' tion of the laws, shall never be exercised but by the General 

Assembly, or by authority derived therefrom ; to be exercised in 
such particular cases only as the General Assembly shall expressly 
provide for. 

Martial law. Sectiox 25. No person shall, in any case, be subject to martial 
law, or to any pains or penalties by virtue of that law, except 
those employed in the army or navy of the United States, and 
except the militia in actual service, but by authority of the Gen- 
eral Assembly. 

Departments SECTION 26. In the government of this Commonwealth the 
dLtiDct.^™™^"^ Legislative, Executive and Judicial powers of the Government 
shall be forever separate and distinct from each other, and no 
person or persons exercising the functions of one of said depart- 
ments shall assume or discharge the duties of any other. 

Redress of SECTION 27. The General Assembly ought frequently to 
grievances. assemble for the redress of grievances and for making new laws 
as the common good may require. 

Right to bear SECTION 2'S. The people have a right to keep and beiu* arms 
for the common defense. As in times of peace armies are dan- 
gerous to liberty, they ought not to be maintained without the 
consent of the General Assembly. The military power ought 
always to be held in an exact subordination to the civil authority 
and be governed by it. 

Quartering of SECTION 20. In time of peace no soldier shall be quartered in 
any house Avithout the consent of the owner ; and in time of war 
such quarter shall not be made but in a manner prescribed by 
law. 



anns. 



CONS'I'I'IT'I'IOX OF SnC'I'lI CAI.MH.l^'A. 




Section ;)||. NO pcismi wlio conscientiously scruples to bear 
jirms slijill I»u (•(•in]ic'll(Ml so to do, hut lie sliiill piiy an ('(piivalent an'tH. 
for })c'rsonal service. 

Section ;J1. All elections shall i)c live and oixmi, and every Freedi.m ..r 

6l6CtJoD8 

iiihahitant of this ('oininonwealth possessing the fjualilications 
jii-ovided for in this Constitution siiall have an cfnial ri^dit to 
elect officers and be elected to fill public oflice. 

Section 32. No property qualilication shall l)e necessary for Property quaii- 
an election to or the holding of any office, and no office shall be 
created the appointment to which shall be for a longer time 
than good behavior. After the adoption of this Constitution, 
any person who shall fight a duel, or send or accept a challoige Dueitets di.s- 
for that purpose, or be an aider or abettor in fighting a duel, ^"""''®^- 
shall be deprived of holding any office of honor or trust in this 
State, and shall be otherwise punished as the law shall prescribe. 

Section 33. The right of suffrage shall be protected by laws night of suf- 
regulatiug elections, and prohibiting, under adequate penalties, ™*^" 
all undue influences from power, bribery, tumult or improper 
conduct. 

Section 34. Representation shall be ai^portioned according to Apportionment 
population, and no person in this State shall be disfranchised or o^f^ ""epresenta- 
deprived of any of the rights or privileges now enjoyed except 
by the law of the laud or the judgment of his peers. 

Section 35. Temporary absence from the State shall not Forfeiture of 
forfeit a residence once obtained. 

Section 3G. All i^roperty subject to taxation shall be taxed in Tmcation o r 
proportion to its value. Each individual of society has a right p^p^'^^- 
to be protected in the enjoyment of life, liberty and i)roperty, 
according to standing laws. He should, therefore, contribute 
his share to the expense of his protection and give liis personal 
service when necessary. 

Section 3T. No subsidy, charge, impost tax or duties shall imposus. taxes 
be established, fixed, laid or levied, under any pretext whatso- 
ever, without the consent of the ])eople or their representatives 
lawfully assembled. 

Section 38. Excessive fines shall not be imposed, nor cruel exiossIvp flm-j;. 
and unusual punishment inflicted, nor shall witnesses be unrea- 
sonably detained. 

Section 39. No title of nobility or hereditary emolument xiiies of no- 
shall ever be granted in this State. Distinction on account of I'//,"*i,,n"f,f p,'^ 
race or color, in any case whatever, shall be prohibittd, and all iliui^j"'^ '"^"" 




CONSTITUTION OF SOUTH CAROLINA. 



classes of citizens shall enj<jy equally all conmutii, itublic, legal 
and political ])i'ivilc<rcs. 
FrciMioiii .if Skctidx 40, All iiavi^^ahlc waters shall remain forever public 

an\ Ku > L \^" - ijigji^y.^yg^ free ^^ ^j^g citizens of the State and the United States, 
witliout tax, impost or toll imposed ; and no tax, toll, impost or 
wliarfage shall be imposed, demanded or received from the 
owner of any merchandise or commodity, for the use of the 
shores, or any wharf erected on the shores, or in or over the 
waters of any navigable stream, unless the same be authorized 
by the General Assembly. 

Reserved rights. Sectiox41. The enumeration of rights in this Constitution 
shall not be construed to impair or deny others retained by the 
people, and all powers not herein delegated remain with tiie 
people. 

ARTICLE 2. 

LEGISLATIVE DEPARTMEXT. 

Legislature. SECTION 1. The Legislative power of this State shall be vested 
in two distinct branches, the one to be styled the " Senate,*" and 
the other the '* House of Representatives," and both together 
the " General Assembly of the State of South Carolina." 

Representatives SECTION 'Z. The House of Representatives shall be composed 
of members chosen by ballot every second year, by the citizens 
of this State, qualified as in this Constitution is provided. 
Judicial dis- SECTION 3. The Judicial Districts shall hereafter be designated 

^^^^' as Counties, and the boundaries of the several Counties shall 

remain as they are now established, except the County of Pickens, 
which is hereby divided into two Counties, by a line leaving the 
Southern boundary of the vState of North Carolina where the 
^Yhite AVater River enters this State, and thence down the centre 
of said river, by Avhatever names known, to Ravenel's Bridge, on 
Seneca River, and thence along the centre of the road leading to 
Pendleton Village until it intersects the line of the County of 
Anderson ; and the territory lying East of sjiid line shall be 
known as the County of Pickens ; and the territory lying West 
of said line shall be known as the County of Oconee : I'rurided, 
That the General Assembly shall have the power at any time to 
organize new Counties by changing the boundaries of any of the 
old ones ; but no new County shall be hereafter formed of less 
extent than six hundred and twenty-five square miles, nor shall 
any existing Counties be reduced to a less extent than six 



CONS'I'ITI'I'IOX OF SorTTI (*Ai:nr>T\A. xxvir 

A. D. IWU. 

liuiulrod and twenty-five square miles. Each County shall con- ''■ — 

stitute one Elcc-tion District. [Anundi'tl. Src jKir/r. Liv.] 

Skcimon' 1. Tiu- If.);is.i of Representatives shall consist of one Apiwrtionmcnt 
luiii.lnd and t wtMity-four members, to be apportioned among the uvJ^''"**''""" 
several Counties, accordinu^ to the numijer of inhabitants con- 
tained in each. An enumeration of the inhabitants for this pur- 
pose shall be made in eigliteen liundnMl and sixty-nine, and 
'diX'diu in eighteen hundred and seventy-five, and shall l)e nnide 
ill the course of every tenth year thereafter, in such manner as 
shall be by law directed ; and Representatives shall be assigned 
to the different Counties in the above mentioned proportion, by 
Act of the General Assembly at the session immediately succeed- 
ing every enumeration : Provided, That until the apportionment, 
which shall be made upon the next enumeration shall take effect 
the rei)resentation of the several Counties, as herein constituted, 
shall be as follows : 

Abbeville, five ; Anderson, three ; Barnwell, six ; Beaufort, 
seven ; Charleston, eighteen ; Chester, three ; Clarendon, two ; 
Colleton, five ; Chesterfield, two ; Darlington, four ; Edgefield, 
seven ; Fairfield, three ; Georgetown, three ; Greenville, four ; 
llorry, two ; Kershaw, three ; Lancaster, two ; Laurens, four ; 
Lexington, two ; .Marion, four ; Marll)oro, two ; Kewberry, three ; 
Oconee, two ; Orangeburg, five ; Pickens, one ; Richland, four ; 
Spartanburg, four ; Sumter, four ; Union, three ; Williamsburg, 
three ; York, four. [Stricken out. See jjarje LVI.] 

Section' 5. If the enumeration herein directed shall not be Duty of gov- 
made in the course of the year appointed for the purpose, it u™r)[tion'.*^ ^°"" 
shall be the duty of the Governor to have it eti'ected as soon 
thereafter as shall be practicable. [Stricken out. See page lvi.J 

Section 6. In assigning Representatives to the several Conn- Assijrnmcnt of 
ties, the General Assembly shall allow one Representative to R*'i"-^-=*«"'""^« 
every one hundred and twenty-fourth part of the whole number 
of inhabitants in the State : Provided, That if in the apportion- 
ment of Representatives any County shall appear not to be 
entitled, from its population, to a Representative, such County 
shall, nevertheless, send one Representative ; and if there be still 
a deficiency of the number of Representatives required by Sec- 
tion fourth of this Article, such deficiency shall l)e sujiplied by 
assigning Re])resentatives to those Counties having the largest 
surjjlus fractions. 

Section 7. No apportionment of Rei)ri'sentativi's shall In- con- wiicntotuke 
sti'iied to take effect, in any manner, uiilil the general election ^''^'"**" 
which shall succeed such apportionment. 



xxviri 



CONSTITUTION OF SOUTH CAROLINA. 



A. D. IKM. 



SonaUirs. 



Two classes. 



Eligibility. 



Section 8. The Senate shall be composed of one member from 
each County, to be elected for the term of four years by the 
quiilitied voters of the State, in the same manner in which niem- 
bers of the House of Representatives are chosen ; except the 
County of Cluirleston, whicii shall be allowed two Senators. 

[Amended. See Amendment to Article r^, Section ll,paije LVI.] 

Section 9, Upon the meeting of the first General Assembly 
whieli sliall be chosen under the provisions of this Constitution, 
the Senators shall be divided, by lot, int<j two classes, as nearly 
equal as may be ; the seats of the Senators of the first class to be 
vacated at the expiration of two years after the Monday following 
the general election, and of those of the second class at the 
expiration of four years ; so that, except as above provided, one- 
half of the Senators may be chosen every second year. 

Section 10. No person shall be eligible to a seat in the Senate 
or House of Representatives who at the time of his election is 
not a citizen of the United States ; nor any one who has not 
been for one year next preceding his election a resident of this 
State, and for three months next preceding his election a resi- 
dent of the County whence he may be chosen, nor any one who 
has been convicted of an infamous crime. Senators shall be at 
least twenty-five and Representatives at least twenty -one years of 
age. 
Time of election SECTION 11. The first election for Senators and Representa- 
tives under the provisions of this Constitution shall be held on 
the fourteenth, fifteenth and sixteenth days of April of the 
present year ; and the second election shall be held on the third 
Wednesday iu October, eighteen hundred and seventy, and for- 
ever thereafter on the same day in every second year, in such 
manner and at such places as the General Assembly may here- 
after provide. [Amended. See page 1.111.] 
of Section 12. The first session of the General Assembly after 
the ratification of this Constitution shall be convened on the 
second Tuesday of May of the present year, in the city of Colum- 
bia, (which shall remain the seat of government until otherwise 
determined by the concurrence of two-thirds of both branches 
of the whole representation) and thereafter on the fourth Tues- 
day in November annually. Should the casualties of war or 
contagious diseases render it unsafe to meet at the seat of gov- 
ernment, then the Governor may, by proclamation, appoint a 
more secure and convenient place of meeting. 



Meetings 
Legislature 



CONSTITC'I'ION OK SOTTII CAROLINA. xxix 

' A. D. iHftl. 

Section i;;. The terms of olliee of (ho Senators and Hcpre- """ '^ ' 

I,- I . II,- 1111- ,i\» Tonn of olTlrc. 

sontatives cliosc'ii at a general eleelion shall hci^nii on the Mon- 
day followini^ snc'h eU'ction. 

SECTioy 14. Each House shall jnd«j;e of the elootion returns Quorum, 
and ({ualilioations of its own members ; and a majority of eadi 
ilonse shall constitute a quorum to do business ; but a smaller 
number may adjourn from day to day, and may compel the 
at tendance of absent members in sudi m;iiiiier and under sueji 
penalties as may be provided by law. 

Section 15. Each House shall choose its own officers, deter- ocacere. 
mine its rules of proceeding, punish its members for disorderly 
behavior, and, with the concurrence of two-thirds, expel a mem- 
l)er. but not a second time for the same cause. 

Section' 1G. Each House may punish 1)y im])risonment, during Ritrht to urrest 
its sitting, any jierson not a mcnil)er who shall l)e guilty of dis- ""'^ P"i1s1i. 
respect to the House by any disorderly or contemptuous behavior 
in its presence ; or Avho, during the time of its sitting, shall 
tiireateu harm to body or estate of any member for anything 
said or done in either House, or who shall assault any of them 
therefor, or who shall assault or arrest any witness or other per- 
son ordered to attend the House, in his going thereto or return- 
i]ig therefrom, or who shall rescue any person arrested by order 
of the House : Provided, That such time of imprisonment shall 
not in any case extend beyond the session of the General Assem- 
bly. 

SiX'Tiox 17. The members of both Houses shall be protected priviieRes of 
in their persons and estates during their attendance on, going to ^^^ "' 
and returning from the General Assembly, and ten days previous 
to the sitting and ten days after the adjournment thereof. But 
these privileges shall not be extended so as to protect any mem- 
ber who shall be charged with treason, felony, or breach of the 
peace. 

Section is. Bills for raising a revenue shall originate in the Revenue Bins. 
Houseof Kcprcsentatives, l)ut may ])e altered, amended oi- rejected 
by the Senate ; and all otiier Bills nniy origiiuite in either House 
and may be amended, altered or rejected by the other. 

Section 19. The style of all laws shall be, ''Be it enacted by style of mws. 
the Senate and Houseof Representatives of the Stjite of South 
Carolina, now met and sitting in General Assembly, and by the 
authority of the same." 

Section '^o. Every Act or Kesolution having the force of law uut one subject, 
shall relate to but one subject, and that shall be expresseil in the 
title. 



XXX CONSTITUTION OF SOUTH CAROLINA. 

A. D. 1«H. "" 

" V ' Section' '^1. No Bill shall have the force of law until it shall 

three umes. havG l)een read three times, and on three several daj's, in each 
House, has had the great seal of State affixed to it, and has been 
signed in the Senate House by the President of the Senate and 
the Speaker of the House of Representatives. 

Drafts on the SECTION 22. No money shall be drawn from the Treasury but 

reasurj. ^^ pursuance of an ai)propriation made by law ; and a regular 

statement and ar-oount of the receipts and expenditures of all 
public moneys sliall be published annually, in such manner as 
may be by law directed. 
Pay of members Sectiox 2.'5. Each member of the first General Assemldy under 
this Constitution shall receive six dollars per diem while in session, 
and the further sum of twenty cents for every mile of the ordi- 
nary route of travel in going to and returning from the place 
where such session is held ; after which they shall receive such 
compensation as shall be fixed by law ; but no General Assembly 
shall have the power to increase the compensation of its own 
members. And when convened in extra session they shall receive 
the same mileage and per diem compensation as are fixed by law 
for the regular session, and none other. 
Votes vivavoce. Sectiox 24. In all elections by the General Assembly, or either 
House thereof, the members shall vote "viva voce," and their 
votes, thus given, shall be entered upon the journal of the House 
to which they respectively belong. 

Adjournments. SECTION 25. Neither House, during the session of the General 
Assembly, shall, without the consent of the other, adjourn for 
more than three days, nor to any other place than that in which 
the Assembly shall be at the time sitting. 

Journals. Section 2G. Each House shall keep a journal of its own pro- 

ceedings, and cause the same to be published immediately after 
its adjournment, excepting such parts as, in its judgment, may 
require secrecy ; and the yeas and nays of the members of 
either House, on any question, shall, at the desire of any two 
members present, be entered on the journals. Any member of 

Protests. either House shall have liberty to dissent from and protest against 
any Act or Resolution which he may think injurious to the public 
or to an individual, and have the reasons of his dissent entered 
on the journals. 

Open doors. SECTION 27. The doors of each House shall be open, except 
on such occasions as, in the opinion of the Hou.=!o, may require 
secrecy. 

ineugibiiity. SECTION 28. No pcrson shall be eligible to a seat in the General 
Assembly whilst he holds any office of profit or trust under this 



CONSTITT'I'loX OF SOCril (',\]K>MNA. xxxi 

A. I), l^■'l. 

Stiiti", the I'liitcd Slates of Aiiu'rica or any of tliciii, or iiii(l(!r ""^•'^ 

any otlicr ])ower, except oflicors in tin- militia, Ma^^istrati-s or 

Justices of inferior Conrts, while sneli Justices receive uo salary. 

And if any nienil)er shall accept or exercise any of the said dis- 

(|iialil"yiiiij: ofliees, he shall vacate his seat : PruvUlvi], That this 

j)r()liil)ition shall not extend to the niernljers of the first (ienerul 

Assenihly. 

Shctiox '^l'^^. If any election district sliall neglect to choose a Failure to elect. 

memher or nienil)ers on the day of election, or if any person 

chosen a incnil)er of either House shall refuse to qualify and n^fusai to 

TO qualify, 

take his seat, or shall resign, die, depart the State, accept any 

(lis(|ualifying otlice, or become otherwise disqualified to hold his 

seat, a writ of election shall be issued by the President of the wrtts of eiec- 

' '' . Hon. 

Senate, or Speaker of the House of Representatives, as the case 

may be, for the purpose of filling the vacancy thereby occasioned, 
for the remainder of the term for which the person so refusing to 
qualify, resigning, dying, departing the State, or becoming dis- 
qualified, was elected to serve, or the defaulting election district 
ought to have chosen a member or members. 

Sfx'TION 30. Members of the General Assembly, and all ofhcers, 
before they enter upon the execution of the duties of their respect- 
ive ofhces, and all members of the bar, before they enter upon 
the practice of their profession, shall take and subscribe the fol- 
lowing oath : 

*'I do solemnly swear (or aflfirm, as the case may be) that I oatu of office, 
am duly qualified, according to the Constitution of the United 
States and of this State, to exercise the duties of the ofiice to 
which I have been elected (or appointed), and that I will faith- 
fully discharge, to the best of niy abilities, the duties thereof ; 
that I recognize the supremacy of the Constitution and laws of 
the United States over the Constitution and laws of any State, 
and that I will support, protect and defend the Constitution of 
the United States and the Constitution of South Carolina as 
ratified by the people on the sixteenth day of April, 1868. So help 
nic God." (And the President of this Convention is authorized 
to fill the blanks in this Section whenever he shall receive satis- 
factory information of the day on which this Constitution shall 
be ratified.) 

Si'X'TiON 31. OtKcers shall be removed for incapacity, miscon- causo of ro- 
(liict or neglect of duty in such manner as may be provided by 
law when no mode of trial or removal is provided iu this Con- 
stitution. 



XXXII CONSTITUTION OF SOUTH CAROLINA. 

A. D. 1Sd4. ~ ~ ■ 

^""■^''""^ Skctkin ',y2. Tlu' family lioiiicstcjul of Ihc lieail of i-adi family 
su-mi. resiiliiii,^ in this State, such honicstcad consistini^ of dwelling 

house, out-buildings and lands appurtenant, not to exceed the 
value of one thousand dollars, and 3'early product thereof, 
shall be exeni])t from attachment, levy or sale on any mesne or 
final process issued from any Court. To secure the full enjoy- 
ment of said homestead exemption to the person entitled thereto, 
or to the head of any family, the personal property of such per- 
son of the following character, to wit, household furniture, beds 
and bedding, family library, arras, carts, wagons, farming imple- 
ments, tools, neat cattle, work animals, swine, goats and sheep, 
not to exceed in value in the aggregate the sum of five hundred 
dollars, shall be subject to like exemption as said homestead, 
and there shall be exempt, in addition thereto, all necessary 
wearing apparel : Provided, That no property shall be exempt 
from attachment, levy or sale for taxes or for payment of ol>liga- 
tions contracted for the purchase of said homestead or the erec- 
tion of improvements thereon: Provided, further, That the 
yearly products of said homestead shall not be exempt from 
attachment, levy or sale for the payment of obligations con- 
tracted in the production of the same. It shall be the duty of 
the General Assembly, at their first session, to enforce the provi- 
sions of this Section by suitable legislation. [Amended. See 
page lv. ] 
Assessments. SECTION' 33. All taxes upon ijroperty, real or personal, shall 
be laid upon the actual value of the property taxed, as the sjime 
shall be ascertained by an assessment made for the purpose of 
laying such tax, 

ARTICLE 3. 

EXECUTIVE DEPAETMENT. 

Tbe Governor. SECTION 1. The supreme executive authority of this State 
shall be vested in a Chief Magistrate, who shall be styled '* The 
Governor of the State of South Carolina." 

Section 2. The Governor shall be elected by the electors duly 
qualified to vote for members of the House of Representatives, 
and shall hold his office for two years, and until his successor 
shall be chosen and qualified, and shall be re-eligible. He shall 
be elected at the first general election held under this Constitu- 
tion for members of the General Assembly, and at each general 
election thereafter, and shall be installed during the first session 



Klectlon of. 



COXSTITVI'IOX Ol' SOC'I'll CAI.'OI.INA. xxxiii 

A. I) IMM. 

of tint siiid (iiiiicial Asst'inbly aftci" his clc'-t ion, on siicli <lay as ''" < 

sliall 1)0 providtid for l)y law. 'riic other State olliccrs elect .shall 
at the sume time enter upon the j)erforiiianee of their duties. 

Sections. No person shall be eli^'ihle to the o dice of Gov- Eligibility of. 
ernor who denies the cxistenee of the Supreme Being ; or who 
at the time of such election has not attained the age of thirty 
years ; and w ho. except at the lirst election under this Constitu- 
tion, shall not have been a citizen of the United States and jv 
citizen and resident of this State for two years next j)receding 
the day of election. No person while Governor shall hold any 
other office or commission (except in the militia) under this State, 
or any other power, at one and the same time. 

Section 4. The returns of every election of Governor shall be Returns of 
sealed up by the Managers of Elections in their respective Coun- ®''*^'"°- 
ties, and transmitted, by mail, to the seat of government, 
directed to the Secretary of State, who shall deliver them to the 
Speaker of the House of Eepresentatives at the next ensuing 
session of the General Assembly, and a duplicate of said returns 
shall be filed with the Clerks of the Courts of said Counties, 
whose duty it shall be to forward to the Secretary of State a 
certified copy thereof, upon being notified that the returns pre- 
viously forwarded by mail have not been received at his office. 
It shall be the duty of the Secretary of State, after the expira- 
tion of seven days from the day upon which the votes have been 
counted, if the returns thereof from any County have not been 
received, to notify the Clerk of the Court of said County, and 
order a copy of the returns filed in his office to be forwarded 
forthwith. The Secretary of State shall deliver the returns to 
tlie Speaker of the House of Representatives, at the next ensuing 
session of the General Assembly ; and during the first week of 
the session, or as soon as the G'eneral Assembly shall have organ- 
ized by the election of the i^residing officers of the two Houses, 
the Speaker shall open and publish them in the presence of both 
Houses. The person having the highest number of votes shall 
be Governor; but if two or more shall be ecpial, and highest in 
votes, the General Assembly shall during the same session, in the 
House of Representatives, choose one of them Governor rira 
voce. Contested elections for Governor shall be determined by 
the General Assembly in siuh inainier as shall be j)reseribcd by 
law. 

Sections. A Lieutenant-lJovernor shall be chosen at tlR' Lieutonunt- 
oovemor Prvsl- 

same time, in the siune manner, continue in office for the same *>«•>' o^iii^s^*"!- 

ate. 
3— A 



XXXIV CONSTITUTION OF SOUTH CAROLINA. 

• A. D. 18W. 

""^ — y ' ]ieriod, aiul l>e possessed of the same qualifications us the Gov- 
ernor, and shall ex officio be President of the Senate. 

To have no SECTION 6. The Lieutenant-Governor, while jjresidin^ in the 
vote, unless, 4c. ggj^j^j.^^ g|^,j]| \^.^yQ ^o yotc, unless the Senate be equally divided. 

Prt"sideni pro SECTION 7. The Senate shall choose a President pro fonjiore, 
to act in the absence of the Lieutenant-(iovernor, or when he 
shall exercise the office of Governor. 

Vacation of SECTION 8. A member of the Senate, or of the House of 
Representatives, being chosen and acting as (rovernor or Lieu- 
tenant-Governor, shall thereupon vacate his seat, and another 
person shall be elected in his stead. 

In case of re- SECTION 9. In case of the removal of the Governor from his 
nation."'^ '^^" office, or his death, resignation, removal from the State, or in- 
ability to discharge the powers and duties of the said office, the 
same shall devolve on the Lieutenant-Ciovernor, and the General 
Assembly, at its first session after the ratification of this Consti- 
tution, shall, by law, provide for the case of removal, death, 
resignation, or inability, both of the Governor and Lieutenant- 
Governor, declaring what officer shall then act as Governor, and 
such officer shall act accordingly, until such disability shall have 
been removed, or a Governor shall have been elected. 

Commander- SECTION 10. The Govcmor shall be Commander-in-Chief of 
in-chief. ^^^ militia of the State, except when they shall be called into 

the actual service of the United States. 

Reprieves and SECTION 11. He shall have power to grant reprieves and par- 
pardons, dons after conviction (except in cases of impeachment), in such 
manner, on such terms, and under such restrictions as he shall 
think proper ; and he shall have power to remit fines and for- 
feitures, unless otherwise directed by law. It shall be his duty 
to report to the General Assembly, at the next regular session 
thereafter, all pardons granted by him, with a full statement of 
each case, and the reasons moving him thereunto. 

Toe.xecute the SECTION 13. He shall take care that the laws be faithfully exe- 
*"^^' cuted, in mercy. 

Compensation. SECTION 13. The Govemor and Lieutenant-Governor .shall, at 
stated times, receive for their services a compensation which 
shall be neither increased nor diminished during the period for 
which they shall have been elected. 

Reports of Section 14. All officers in the Executive Department shall, 

ofBcers. when required ])y the Governor, give him information in writing 

upon any subject relating to the duties of their respective offices. 

Giveinfonna- SECTION 15. The (iovernor shall, from time to time, give to 
teSture.'"' ^^" the General Assembly information of the condition of the State, 



OONSTITl'I'ION OF SOUTH CAROLINA. 




iiiid rccoiiiiiit'iitl I'nr tlu'ir coiisidoriitioii such ineiisurcs as he shall 
judge necessary or expedient. 

Sectiox K), He may on extraordinary occasions convene the Exiru »c*Hion.s. 
(ieneral Assembly; and slioukl either House remain without a 
i|iioruni for five days, or in case of disagreement between the two 
Houses with respect to the time of adjournment, may adjourn 
them to such time as he shall think proper ; not beyond the time 
of the annual session then next ensuing. 

Section 17. lie shall commission all officers of the State. comniiNsioiw. 

Section 18. There shall be a seal of the State, for which the seai of state, 
(ieneral Assem])ly, at its first session, shall provide, and whidi 
shall be used by the (Governor officially, and shall be called '' The 
Great Seal of the State of South Carolina." 

Si:("Ti()N 10. All grants and commissions shall be issued in the Grants. &<•., 
name and by the authority of the State of South Carolina, sealed 
with the great seal, signed by the (Governor, and countersigned 
by the Secretary of State. 

Section 20. The Governor and the Lieutenant-Governor, be- oath of office, 
fore entering upon the duties of their respective offices, shall take 
and subscribe the oath of office as prescribed in Article two. Sec- 
tion thirty, of this Constitution. 

Section 21. The Governor shall reside at the capital of the R<^kience of 
State ; but during the sittings of the General Assembly he shall 
reside where its sessions are held, except in case of contagion. 

Section 22. Every Bill or Joint Resolution which shall have bhis to be 
passed the General Assembly, except on a question of adjourn- ^ 
ment, shall, l)efore it becomes a law, be presented to the Gov- 
ernor, and, if he approve, he shall sign it ; if not, he shall return 
it, with his objections, to the House in which it shall have origi- veto, 
luited, which shall enter the objections at large on its journals 
and proceed to reconsider it. If, after such reconsideration, two- 
thirds of that House shall agree to pass it, it shall be sent, 
together with the objections, to the other House, by which it 
shall be reconsidered, and if approved by two-tliirds of that 
House it shall have the same effect as if it had been signed by 
the Governor; l)ut in all such cases the vote of both Houses 
shall ])e taken by yeas and nays, and the luimes of the jiersons 
voting for and against the Bill or Joint Resolution shall be en- 
tered on the journals of both Houses respectively. If a Bill or 
Joint Resolution shall not be returned by the (loveriu)r within 
three days after it shall have been prcst'utefl to him, Sundavs 
excepted, it shall have the same force and cllVct as if he siuncd 



XXXVI CONSTITUTION OF SOUTH CAROLINA. 

A. D. 1804. 

"— ^"v it, unless the Cit'iitTiil Assembly by their adjournment prevent 

its return, in which case it shall not have such force and effect 

unless returned within two days after their next meeting. 

Comptroller- SECTION 23. There shall be elected by the qualified voters of 

Miivr. ami See- the State a Comptroller-General, a Treasurer and a Secretary of 

returyi. Slut, j^^.^^g^ ^jj^ gju^i] ]j(,ij their respective offices for the term of four 

years, and whose duties and compensation shall be prescribed by 

law. [Amended hy making fhe fenn tivo i/i'ars. Seepage liv.| 

ARTICLE 4. 

JUDICIAL DEPARTMENT. 

Judicial De- SECTION 1. The judicial power of this State shall be vested in 
partment. ^ Sujireme Court, in two Circuit Courts, to wit : a Court of Com- 

mon Pleas, having civil jurisdiction, and a Court of General Ses- 
sions, with criminal jurisdiction only, in Probate Courts and in 
Justices of the Peace. The General Assembly may also estab- 
lish such municipal and other inferior Courts as may be deemed 
necessary. 
Supreme Court. SECTION 2. The Supreme Court shall consist of a Chief Justice 
and two Associate Justices, any two of whom shall constitute a 
quorum. They shall be elected by joint vote of the General 
Assembly, for the term of six years, and shall continue in office 
until their successors shall be elected and qualified. They shall 
be so classified that one of the Justices shall go out of office 
every two years. 

Term of office. SECTION 3. The Chief Justice elected under this Constitution 
shall continue in office for six years, and the General Assembly 
immediately after the said election shall determine which of the 
two. Associate Justices elect shall serve for the term of two years 
and which for the term of four years ; and having so determined 
the same, it shall be the duty of the Governor to commission 
them accordingly. 

Jurisdiction. SECTION 4. The Supreme Court shall have appellate jurisdic- 
tion only in cases of Chancery, and shall constitute a Court for 
the correction of errors at law, under such regulations as the 
General Assembly may by law prescribe : Provided, The said 
Court shall always have power to issue writs of injuncticm. man- 
damns, quo icananio, habeas corpus, and such other original 
and remedial writs as may be necessary to give it a general super- 
visory control over all other Courts in the State. 



(H)\s'n'ri"i'i(>x oi' SOUTH cjaijomna. 



\ x \ \ I 1 

A. I>. I".l. 



Sf-HMlontf. 



DlMiuullUcii- 

tlODii. 



Section" 5. TIic Suprcnic Court shall !)(• held iit least oiicc in 
I'jich yi'iw, at the seat oi ^fovenuueiit, and at such otlier place or 
])jaces in the State as the (Jeneral Assi'iuhly may direct. 

SiccnoN (!. No .ludLTe shall [)resi<le on tlie trial of any cause in 
(lie event of wliicli he may h(> inti'restcd, or where either of the 
parties shall he connected with him hy adinity or consan«ciiinity 
within such degrees as may be prescribed by law, or in wliieh he 
may have been counsel, or have presided in any inferior C!ourt, 
e.\'ce])t by consent of all the parties. In case all oi- any of the 
dudges of the Supreme Court shall be thus disqualilied from pre- 
siding in any cause or causes, the Court or the Judges thereof 
shall certify the same to the Governor of the State, and he shall 
immediately commission, specially, the requisite number of men 
learned in the law for the trial and determination thereof. The 
same course shall be pursued in the Circuit and inferior Courts as 
is i-)rescribed in this Section for cases of the Supreme Court. 

Section 7. There shall be appointed by the Judges of the Reporter and 
Supreme Court a Reporter and Clerk of said Court, vi^ho shall 
hold their offices for two years, and whose duties and compensa- 
tion shall be prescribed by law. 

Section 8. When a judgment or decree is reversed or affirmed judgme n ts 
by the Supreme Court, every point made and distinctly stated in '"^'^ ^^""^^s. 
writing in the cause, and fairly arising upon the record of the 
case, shall be considered and decided ; and the reasons therefor 
shall be concisely and briefly stated in writing, and preserved 
with the records of the case. 

Section 9. The Judges of the Supreme Court and Circuit compensation. 
Courts shall, at stated times, receive a compensation for their 
services, to be fixed by law, which shall not be diminished dur- 
ing their continuance in office. They shall not be allowed any 
fees or perquisites of office, nor shall they hold any other office 
of trust or profit under this State, the United States, or any 
other power. 

Section 10. "N"© })crson shall be eligible to the office of Judge Eligibility, 
of the Supreme Court or Circuit Courts who is not at the time of 
his election a citizen of the United States, and has not attained 
the age of thirty years, and been a resident of this State for five 
years next preceding his election, or from the adoption of this 
Constitution. 

Section 11. All vacancies in the Su})reme Court or otiii'r v„canrira. 
inferior tribunals shall be filled by elections as herein prescribed : 
/'niri(/r(L That if tlic niu'Xpircil term does not exceed one year. 



XXXVIII CONSTITUTION OF SOUTH CAKOLINA. 

A. D. ISIM. 

' -• ' such Viuaiicy may l)o filled by Executive appointment. All 
.hul^^i's. by virtue of their office, shall be conservators of the i)eace 
thnuigiiout the State, 

Dci'isions. Section 1:3. In all cases decided l)y the Supreme Court, a 

concurrence of two of the Judges shall be necessary to a decision. 

circuits. Section 13. The State shall be divided into convenient Cir- 

cuits, and for each Circuit a Judge shall be elected by joint ballot 
of the General Assembly, who shall hold his office for a term of 
four years, and during his continuance in office he shall reside in 
the Circuit of which he is Judge. 

Interchanging. SECTION 14. Judges of the Circuit Court shall interchange 
Circuits with each other, in such manner as may be determined 
by law. 
Common Pleas. SECTION 15. The Courts of Common Pleas shall have exclusive 
jurisdiction in all cases of divorce, and exclusive original juris- 
diction in all civil cases and actions ex delicto which shall not be 
cognizable before Justices of the Peace, and appellate jurisdiction 
in all such cases as may be provided by law. They shall have 
power to issue writs of mandamus, prohibition, scire facias, and 
all other writs which may be necessary for carrying their powers 
fully into effect. 

Times of hold- SECTION IG, The Court of Common Pleas shall sit in each 
Judicial District in this State at least twice in every year, at such 
stated times and places as may be appointed by law. It shall have 
jurisdiction in all matters of Equity, but the Courts heretofore 
established for that purpose shall continue as now organized until 
the first day of January, one thousand eight hundred and sixty- 
nine, for the disposition of causes now pending therein, unless 
otherwise provided by law. 

Preseiration SECTION 17. The General Assembly shall provide by law for 
the preservation of the records of the Courts of Equity, and also 
for the transfer to the Court of Common Pleas and Probate 
Courts for final decision of all causes that may remain undeter- 
mined. It shall be the duty of the Judges of the Supreme and 
Circuit Courts to file their decisions within sixty days from the 
last day of the term of Court at which the causes were heard. 

Jurisdiction. SECTION 18, The Court of General Sessions shall have exclusive 
jurisdiction over all criminal cases which shall not be otherwise 
provided for l)y law. It shall sit in each County in the State at 
least three times in each year, at such stated times and places as 
the General Assembly may direct. 

County Com- SECTION 19, The qualified electors of each County shall elect 
missioners. three persous for the term of two years, who shall constitute a 



Ing 



CONSTlTirrioN OF yOUTlI ('.\K'(»|,I\A. \\.\i\ 

A. I>. I'-'.il. 

liuai'd (if ( '()iiiit\ ( 'oiiiiiiissioiici's, \vlii(di shall have jiiris(licti(]|i ■ 

oviT TDads, lii;,Hi\vays. t'orrics, hrid^'cs, ami in all iiiattura relatiiif; 
l,() taxes, (lishursi'iiu'iits r»f nioiiL'y Tor Coimty ])ur|)()8i;s, aixl in 
every other case that may \h\ necessary to the internal im])rove- 
mciit rind local concerns ul" the respective Counties : Prarided, 
That in all cases tliere shall lie the ri^^Jit of appeal to the State 
Courts. [This Sec/ ion was repealed December 20th, 1890. See 
Acts 1890, VuL XX., 01,9.] 

Sectiox 20. A Court of Prohah^ shall he established in each court or Pro- 
County, with jurisdiction in all matters testamentary and of 
administration, in business a})])crLaining to minors and the allot- 
ment of dower, in cases of idiocy and lunacy and persons non 
riinipntes mentis. The Judge of said Court shall be elected by 
the qualified electors of the respective Counties for the terra of 
two years, [Amended hy mahiui} the term four instead of 
ln'n years. See paije lvii.] 

Section 21. A competent number of Justices of the Peace and justices of the 
Constables shall be chosen in each County by the qualified elec- 
tors thereof, in such manner as the General Assembly may direct ; 
they shall hold their offices for a term of two years and until their 
successors are elected and qualified. They shall reside in the 
County, city or beat for which they are elected, and the Justices 
of the Peace shall be commissioned by the Governor. 

Section 22. Justices of the Peace, individually, or two or more jurisdiction, 
of them jointly, as the General Assembly may direct, shall have 
original jurisdiction in cases of bastardy, and in all matters of 
contract, and actions for the recovery of fines and forfeitures 
where the amount claimed does not exceed one hundred dollars, 
and such jurisdiction as may be provided by law in actions ex 
delicto where the damages claimed do not exceed one hundred 
dollars ; and prosecutions for assault and Ijattery and other ]ienal 
offenses less than felony, punishable by fines only. 

Section 23. They may also sit as exaniining Courts and com- powers, 
mit, discharge or recognize (except in capital cases) persons 
charged with offenses, subject to such regulations as the General 
Assembly may provide ; they shall also have power to bind over 
to keep the peace, or for good behavior. For the foregoing })ur- 
poses they shall have power to issue all necessary processes. 

Section 24. Every action cognizable before .lustices of the niuht of np- 
Peace instituted by summons or warrant shall be brought l)efore '^'" ' 
some Justice of the Peace in the County or city where the defend- 
ant resides, and in all such causes Ij-ied bv ihem the ri'dit of 



XL CONSTITUTION OF SOf'TH CAROLINA". 

A. D. IMM. 

^^^ appeal shall be secured under such rules and regulations as may 

be provided by law. 
Compensation. SECTION' '^5. The Judges of Probate. County Commissioners, 
Justices of the Peace, and Constables, shall receive for their ser- 
vices such compensation and fees as the General Assembly may 
from time to time In' law direct, 
chanteof. Section 26. Judges shall not charge juries in respect to mat- 

ters of fact, but may state the testimony and declare the law. 

Clerks of courte. SECTION 27. There shall be elected in each County, by the 
electors thereof, one Clerk for the Court of Common Pleas, who 
shall hold his office for the term of four years and until his suc- 
cessor shall be elected and qualified. He shall, by virtue of his 
office, be Clerk of all other Courts of record held therein ; but 
the General Assembly may provide by law for the election of a 
Clerk, with a like term of office, for each or any other of the 
Courts of record, and may authorize the Judge of the Probate 
Court to perform the duties of Clerk for his Court, under such 
regulations as the General Assembly may direct. Clerks of Courts 
shall be removable for such cause and in such manner as shall 
be prescribed by law. 
Attoraey-Gen- SECTION 28. There shall be an Attorney-General for the State, 

''™'- who shall perform such duties as may be prescribed by law. He 

shall be elected by the qualified electors of the State for the term 
of four years, and shall receive for his services such compensation 
as shall be fixed by law. [Amended bi/ maJciug the term two 
years instead of four years. See Amendment to Article J, »SVc- 
tion 23, page liv. ] 
Solicitors. Section 29. There shall be one Solicitor for each Circuit, 

who shall reside therein, to be elected by the qualified electors 
of the Circuit, who shall hold his office for the term of four years, 
and shall receive for his services such compensation as shall be 
fixed by law. In all cases where an attorney for the State, of 
•any Circuit, fails to attend and prosecute according 'to law, the 
Court shall have power to appoint an attorney jiro tempore. 
Sheriffs and SECTION 30. The qualified electors of each County shall elect 

Coroners. ^ Sheriff and a Coroner, for the term of four years, and until 

their successors are elected and qualified ; they shall reside in 
their respective Counties during their continuance in office, and 
be disqualified for the office a second time if it should ap])ear 
that they or either of them are in default for money collected by 
virtue of their respective offices. 
Writs and pro- SECTION 31. All writs and proces.^es shall run. and all prose- 

eesses. cutions shall be conducted, in the name of the State of South 



coNvS'iM'rr'nox ok socrif caijouna. xf.i 

A. I). IKtt. 

Carolina; all wills shall lie attested liy llic ("K'rk (»f tlio Court ' ' 
from which they shall ho issued ; and all indietnieuts shall con- 
clude ''against the ])eaee and dignity of the State." 

Section 32. The (Jcneral Assenihly sliall i)rovide hy hiw for ^Dwi«ion» of 

. • ' •' the Supreme 

the speedy publication of the decisions of the Supreme Court Court, 
made under this Con.stitution. 
Section" 33. The first General Assemhlv convened iindci- this constitutional 

,, 1-, ,• , ,1 • r. i • • Til iM 1 • iinit-ndiiient. 

I iinstitution, at their nrst session immediately alter tlieir per- 
manent organization, shall ratify the amendment to the Consti- 
tution of the United States known as the Fourteenth Article, 
j)roposed by the Thirty-ninth Congress. 

Sectiox 34. All contracts, M-hether under seal or not, the slave contracto. 
consideration of which were for the purchase of slaves are hereby 
declared null and void and of no effect ; and no suit, either at 
law or equity, shall be commenced or prosecuted for the enforce- 
ment of such contracts ; and all proceedings to enforce satisfac- 
tion or payment on judgments or decrees rendered, recorded, 
enrolled, or entered upon such contracts, in any Court of this 
State, ai'e hereby prohibited ; and all orders heretofore made in 
this State in relation to such contracts whereby property is held 
subject to decision as to the validity of such contracts are also 
hereby declared null and void and of no effect, 

ARTICLE 0. 

JURISPRUDENCE. 

SEfTiON 1. The General Assembly sliall pass such laws as may Arbitratore. 
be necessary :ind ]n-oper to decide differences by arljitrators, to 
be ai)pointed by the j)arties who may choose that summary mode 
of adjustment. 

Section 2. It shall l)e the duty of the General Assembly to change of venue 
pass the necessary laws for the change of venue in all cases, civil 
and crimiiial. over wliich the Circuit Courts Inive original juris- 
diction, upon a proper showing, supported by aftidjivit, that a 
fair and impartial trial cannot l)e had in the County where such 
trial or prosecution was commenced. 

Section 3. The General Assembly, at its first session alter the c.Kiuk-ation of 
adoption of this Constitution, shall make provision to revise, 
digest and arrange, under proper heads, the body of our laws, 
civil and criminal, and form a penal code founded upon princi- 
ples of reformation, and have the same jn-omulgated in such 
manner as they may direct; and a like revision, digest and pro- 
mulgation shall be mtule within every subsequent period of ten 



XMi CONSTITUTION OF SOUTH CAROLINA. 

A. D. ISUJ. " ' ■ 

' ' years. Tlmt justice may be administered in a uniforiu mode of 
})Ieatliii:r. without distinction between law and ei|uity. tliey sliall 
provide for abolishing the distinct forms of action, and for that 
purpose shall ap[)oint some suitable person or persons whose 
duty it shall be to revise, sini|)lify and abrid;;e the rules, prac- 
tice, pleadings and forms of the Ctuirts now in use in this State. 

ARTRLK G. 

EMINENT IKJMAIN. 

Eminent SECTION 1. The State shall have concurrent jurisdiction on all 
°™ ■ rivers bordering on this State, so far as such rivers shall form a 

common boundary to this and any other State bounded by the 
same ; and they, together with all other navigable waters within 
the limits of the State, shall be common highways, and forever 
free, as well as to the inhabitants of this State as to the citizens 
of the United States, without any tax or impost therefor, unless 
the same be expressly provided for by the General Assembly. 

Land titles. SECTION 2. The title to all lands and other property which 
have heretofore accrued to this State by grant, gift, purchase, 
forfeiture, escheats or otherwise shall vest in the State of South 
Carolina, the same as though no change had taken place. 

Ultimate right SECTION 3. The peojile of the State are declared to possess 

prope y. ^^^ ultimate property in and to all lands within the jurisdiction 
of the State ; and all lands the title to which shall fail from 
defect of heirs shall revert or escheat to the people. 

ARTICLE :. 

IMPEACHMENTS. 

Impeachment. SECTION 1. The House of Representatives shall have the sole 
power of impeachment. A vote of two-thirds of all the mem- 
bers elected shall be required for an impeachment, and any 
officer impeached shall thereby be suspended from office until 
judgment in the case shall have been pronounced. 

How tried. SECTION 2. All impeachments shall be tried by the Senate, 

and when sitting for that purpose they shall be under oath or 
affirmation. No person shall be convicted except by vote of two- 
thirds of all the members elected. When the Governor is 
impeached, the Chief Justice of the Supreme Court, or the senior 
Judge, shall preside, with a casting vote in all preliminary 
questions. 



COXSTITrTloX OK SOUTH (JAnor.IXA. XLiir 



Who liable. 



Section 3. The fJovcrnor and all other executivr and jiidi<;ial 
ofliccrs shall he liahle to iini)C'a<dmu'iit ; hut jiid;.,Miit'iit in such 
case shall not extend further than reiHoval from oltiee. Tlie 
persons convicted shall nevertheless he liahle to indictment, trial 
and punishment accord in;,^ to law. 

Skction' 4. For anv willful nc'dect of duty or otlier reasonaltle cuuscji of im- 

11111 1 ,ir. • i 1 i. • 1 . . 1 peaclinient. 

cause which shall not he sutticient ground of impeachment, the 
(lovcrnor shall remove any executive or judicial ofliccr on the 
address of two-thirds of each House of the (Jeneral Assemhly : 
Prouided, That the cause or causes for which said removal may 
he required shall he stated at length in such address and entered 
on the journals of each House : And j^rorided, furtlier, That 
the officer intended to he removed shall be notified of such cause 
or causes and shall be admitted to a hearing in his OAvn defense 
l)efore any vote for such address ; and in all cases the vote shall 
he taken by yeas and nays and be entered on the journals of each 
House respectively. 

ARTICLE 8. 

RIGHTS OF SUFFRAGE. 

Section 1. In all elections by the people the electors shall xhebaiiot. 
vote by ballot. 

(Section 2. Every male citizen of the United States of the age Quaiiucation 
of twenty-one years and upwards, not laboring under the (jjg. o^ electors. 
al)ilities named in this Constitution, without distinction of race, 
color or former condition, who shall be a resident of this State 
at the time of the adoption of this Constitution, or who shall 
thereafter reside in this State one year, and in the County in 
which he offers to vote sixty days next preceding any election, 
shall ])e entitled to vote for all officers that are now or hereafter 
may be elected by the people, and upon all questions submitted 
to the electors at any elections : Provided, That no person shall 
he allowed to vote or hold office who is now or hereafter may be 
disipialilied therefor by the Constitution of the United States 
until such disqualification shall be removed by the Congress of 
the United States : Providedy further. That no person while 
kept in any almshouse or asylum, or of unsound mind, or con- 
fined in any public prison, shall be allowed to vote or hold office. 

Skctiox 3. It shall l)e the duty of the (Jeneral Assemhlv to Registration, 
provitlf from time to time for the registration of all electors. 



XLiv CONSTITUTION OF SOUTH CAROLINA. 

A. D. 18W. 

^"■^ •<■ Skction 4. For tlu' jturposo of votin<,^ no in-rsoji shall be 

(leeiiicd to nave lost liis residence l)y reason of absence while 

employed in the service of the United States, nor while engaged 

upon the waters of this State or the United States, or of the 

liigh seas, nor while temporarily absent from the State. 

soidiors and SECTION 5. No soldler, scaman or marine in the army or navy 
sailors. . , . 

of the United States shall be deemed a resident of this State in 
consequence of having been stationed therein. 

Exemption Sectiox (J. Electoi's sliall in all cases, except treason, felony 
or In-each of the peace, be privileged from arrest and civil process 
during their attendance at elections and in going to and return- 
ing from the same. 

EUgibiuty to Section 7. Every person entitled to vote at any election shall 
**■ be eligible to any office which now is or hereafter shall be elective 

by the people in the County where he shall have resided sixty 
days previous to such election, except as otherwise provided in 
this Constitution or the Constitution and laws of the United 
States. 

Disquaiiflca- SECTION 8. The General Assembly shall never pass any law 
that will deprive any of the citizens of this State of the right of 
suffrage except for treason, murder, robbery or dueling, whereof 
the person shall have been duly tried and convicted. [A mended. 
See jittge lv. ] 

Presidential SECTION 9. Presidential Electors shall be elected by the peoble. 

Electors. t n i • i i i i i t ^ • /, 

Who elected SECTION 10. In all elections held by the people under this Con- 
stitution, the person or persons who shall receive the highest 
number of votes shall be declared elected. 
Not applicable SECTION 11. The provisions of this Constitution concerning 
the term of residence necessary to enable persons to hold certain 
offices therein mentioned shall not be held to apply to officers 
chosen by tlie people at the first election, or by the General 
Assembly at its first session. 
Fornipr slaves SECTION 12. No person shall be disfranchised for felony or 
chised. other crimes committed while such jierson was a slave. 

ARTICLE !i. 

FINANCE AND TAXATION'. 

Assessment SECTION 1. The General Assembly shall provide by law for a 
and taxation, uniform and equal rate of assessment and taxation and shall pre- 
scribe such regulations as shall secure a just valuation for taxa- 
tion of all property, real, personal and i)ossessory, except mines and 



CONSTITUTION (>F soi'l'II CA IJOI.I \.\. xlv 

A. n. u;ii. 
iiiiniiiii' chiinis. the procct'ds ol" wliidi :il<ni(' sliiill he taxed ; and "^^ -' ' 
also oxceptiii^jf such ))ri»|)orty as may he exem{)ted hy hiw for 
ininiicipal, educational, literary, scientidc, religious or eharitahle 

plll'pnSeS. 

yncTioN 2. The (Jeneral Asseinhly may i)rovide annually for I'oiitux. 
a poll tax uot to exceed one dollar on each ])oll, which shall he 
applied exclusively to the public school fund. And no addi- 
tional poll tax shall he levied hy any municipal corporation. 

Skctidn ;{. Tlu' (ieiu'ral Assembly shall provitle for an annual Aunuai tax. 
(ax sallicii'ut In defray tlie estimated expenses of the State for 
each year ; and whenever it shall happen tliat such ordinary 
expenses of the State for any year shall exceed the income of 
the State for such year, the General Assembly sliall provide for 
levying a tax for the ensuing year sufficient, with other sources 
of income, to pay the deficiency of the preceding year together 
with the estimated expenses of the ensuing year. 

Section 4. No tax shall be levied except in jDursuance of a object to be 
law which shall distinctly state the object of the same ; to which ^ 
object such tax shall be applied. 

Section 5. It shall be the duty of the General Assembly to Exemptions, 
enact laws for the exemption from taxation of all public schools, 
colleges and institutions of learning, all charitable institutions 
in the nature of asylums for the inhrm, deaf and dumb, blind, 
idiotic and indigent persons, all public libraries, churches and 
burying grounds; but property of associations and societies, 
although connected with charitable objects, shall not be exempt 
from State, County or municiiDal taxation : Provided, That this 
exemption shall not extend beyond the buildings and premises 
actually occupied by such schools, colleges, institutions of learn- 
ing, asylums, libraries, churches and burial grounds, although 
connected with charitable objects. 

Skctiu.v G. The (icncral Assembly shall provide for the vain- Viiiuntion of 
atioii and assessment df all lands and the ini[irovements thereon 
prior to the assembling of the General Assembly of one thousand 
eight hundred and seventy, and thereafter on every fifth year. 

Section 7. For the purpose of defrayingextranrdinary expend- pui.iic debts. 
itures, the State may contract public debts, but such debts shall be 
authorized by law for some single object, to l)e distiiu-tly s])eciticd 
therein ; and no such law shall take effect until it shall have been 
])assed Ijy a vote of two-thirds of the members of each branch of 
the (Jeneral Assembly, to be recorded by yeas and luiys on the 
jounuils of each House respectively ; and every such law shall 



XLVi CONSTITUTION OF SOUTH CAROLINA. 

A. D. 181M. 

^~'~^^ ' levy a tax annually sufticient to i)ay the annual interest of such 
(lel)t.* 
Munkijwi laxi-s SixTiox 8. That the corporate authorities of Counties, tovm- 
shij)S, school districts, cities, towns and villages may be vested 
with power to assess and collect taxes for corporate purposes, 
such taxes to be uniform in respect to persons and pnjperty 
within the jurisdiction of the body imposing the same. And 
the (Jeneral Assembly shall require that all the property, 
except that heretofore exempted within the limits of municipal 
corporations, shall be taxed for the jiayment of debts contracted 
under authority of law. 
incorptTauons. SECTION 9. The General Assembly shall provide for the incor- 
poration and organization of cities and towns, and shall restrict 
their powers of taxation, borrowing mone}', contracting debts, 
and loaning their credit. 

Evidences of SECTION 10. No scrip, certificate, or other evidence of State 
ness. indebtedness shall be issued except for the redemption of stock, 

bonds, or other evidences of indebtedness previously issued, or 
for such debts as are expressly authorized in this Constitution. 

Receipts and Sectiox 11. An accurate Statement of the receipts and expend- 
expen ur . j^yj,gg ^f ^jjg public money shall be published with the laws of 
each regular session of the General Assembly, in such manner as 
may, by law, be directed. 

Drafts on the SECTION 12. No money shall be drawn from the Treasury but 
Treasury. j^ pursuance of appropriations made by law. 

Fiscal year. SECTION 13. The fiscal year shall commence on the first day of 
November in each year. 

state bonds SECTION 14. Any debt contracted liy the State shall be by loan 
on State bonds of amounts not less than fifty dollars each, on 
interest, payable within twenty years after the final passage of 
the law authorizing such debt. A correct registry of all bonds 
shall be kept by the Treasurer in numeriejil order, so as always 
to exhibit the number and amount unpaid, and to whom sev- 
erally made payable. [Amended . See pa(/e LXi.] 

state. County SECTION 15. Suitable laws shall be passed Viy the General As- 
fun^.^ *^ '^ ° ° ' sembly for the safe keeping, transfer and disbursement of the 
State, County and school funds, and all officers and other per- 
sons charged with the same shall keep an accurate entry of each 
sum received, and of each paymetit and transfer, and shall give 
such security for the faithful discharge of such duties as the 
General Assembly may provide. And it shall be the duty of the 

*See Aitlcleie. 



CONSTITUTION OF SOUTH ( AROLINA. xlvii 

A.I). in;ii. 
Goiu'i'al .\ssfiiilily to [la.ss laws niakiii<,f (.'Milicz/.lriiifiit of such ^'~'^'^~^ 
fluids H felony, j)uiiislial)Ie by line and iniprisontncnt jtrojior- 
tioiicd to the amount of dullciency or eniliczzlcnicnt, and the 
]i;iitv convicted of such felony shall be disqualified from ever 
holding any ofTice of honor or onioluincnt in this State : Pro- 
vuh'd, luiirever, That the (Jcneral Assembly. l)y a two-third vote, 
may remove the disability upon payment in full of the principal 
and interest of the sum embezzled. 

Skctfox K), No debt contracted l)y this State in behalf of the Rebel debts. 
late rebellion, in whole or in pai't, shall ever be jmid. 

Section IT. Any bonded del)t hereafter incurred by any rounty and 

County, municipal cor])oration or political division of this State iwDd".'*^ ' pal- 

shall never exceed eight per centum of the assessed value of all uatifled in 

\^M See Vol 
the ta.xable property therein. xviii., 08u. 

ARTICLE 10. 

EDUCATION. 

Section 1. The supervision of public instruction shall be superintendent 
vested in a State Superintendent of Education, who shall be °' *^""'"°°- 
elected by the qualified electors of the State in such manner and 
at such time as the other State officers arc elected ; his powers, 
duties, term of office and compensation shall be defined by the 
General Assembly. 

Section 2. There shall be elected biennially, in each County, school com- 
by the qualified electors thereof, one School Commissioner, said ™*ssioners. 
Commissioners to constitute a State Board of Education, of 
which the State Superintendent shall, by virtue of his office, be 
Chairman ; the powers, duties and conii:)ensation of the members 
of said Board shall be determined by law. 

Section 3. The General Assembly shall, as soon as practicable preeschoois. 
after the adoption of this Constitution, provide for a liberal and 
uniform sj^stem of free public schools throughout the State, and 
shall also nuikc provision for the division of the State into suita- 
ble school districts. 'J'here shall be kept ojjen at least six 
months in each year one or more schools in each school district. 

Section 4. It shall be the duty of the General Assembly to compuisi-ry ut- 
provide for the compulsory attendance, at either public or pri- 
vate schools, of all children between the ages of six and sixteen 
years, not physictilly or mentally disabled, for a term equivalent 
to twenty-four months at least : Provided, That no law to that 
effect shall be passed until a system of public schools has been 



XLViii CONSTITUTION OF Somi rAHOLIXA. 

A. D. IM'4. 

' ^ ' thorouglily and completely organized mid f:ni!ities afforded to 

all tilt' iiilial)itaiit.s of the State for the free education of their 
chiliirt'H. 
schot.itajc. Skction 5. The General Assembly shall levy at each regular 

session after the adoption (jf this Constitution an annual tax on 
all taxable pnj])erty tiiroughout the State for the support of ])ub- 
lic schools, which tax shall be collected at the same time and by 
the same agents as the general State levy, and shall be paid into 
the Treasury of the State. There shall be assessed on all taxable 
polls in the State an annual tax of one dollar on each poll, the 
proceeds of which tax shall be api)lied solely to educational pur- 
poses : Provided, That no person shall ever be deprived of the 
right of suffrage for the non-payment of said tax. No other poll 
or capitation tax shall be levied in the State, nor shall the amount 
assessed on each poll exceed the limit given in this Section. The 
school tax shall be distributed among the several school dis- 
tricts of the State in proportion to the respective number of 
pupils attending the public schools. No religious sect or sects 
shall have exclusive right to, or control of, any part of the school 
funds of the State, nor shall sectarian principles be taught in the 
public schools. {Amended. Seepage liy.] 

Normal school. SECTION 6. Within five years after the first regular session of 
the General Assembly following the adoption of this Constitu- 
tion, it shall be the duty of the General Assembly to provide for 
the establishment and supjiort of a State Normal School, which 
shall be open to all persons who may wish to become teachers. 
Blind, deaf SECTION 7. Educational institutions for the benefit of all the 
blind, deaf and dumb, and such other benevolent institutions as 
the public good may require, shall be established and supported 
by the State, subject to such regulations as may be prescribed by 
law. 

Reform school. Sectiox 8. Provisions shall be made by law, as soon as prac- 
ticable, for the establishment and maintenance of a State Reform 
School for juvenile offenders. 

Sectiox 0. The General Assembly shall provide for the main- 
tenance of tlie State University, and as soon as practicable jiro- 

Agricuiturai '^'^^^ ^^^ ^^^^ establishment of an Agricultural College, and shall 
coiiejre. appropriate the land given to this State for the support of such 

a college, by the Act of Congress, passed July second, one thou- 
sand eighty hundred and sixty-two, or the money or scrip, as the 
case may be, arising from the sale of said lands, or any lands 
which may hereafter be given or appropriated for such purpose. 



state University 



CONSTITUTION OF SOUTH CAI.'OIJNA. 



fi»r the support unci mainteniince of such college, and may make 
tlie siinu! a branch of the State University, for instruction in 
A<,n'i<uiiture, the .Mechanic Arts, ami tlie Natural Sciences con- 
nected therewith. 

Section lo. All the public schools, colleges and universities 
of this State sui)ported in whole or in part by the public funds 
shall be free and ojjcn to all the children and youths of the State, 
without regard to race or color. 

Section 11. The proceeds of all lands that have been or here- 
after may be given by the United States to this State for educa- 
tional purposes, and not otherwise appropriated by this State or 
the United States, and of all lands or other property given by 
individuals, or appropriated by the State for like purjiose, and 
of all estates of deceased persons who have died without leaving 
a will or heir, shall be securely invested and sacredly preserved 
as a State School Fund, and the annual interest and income of 
said fund, together Avith such other means as the General 
Assembly may provide, shall be faithfully appropriated for the 
purpose of establishing and maintaining free public schools, and 
for no other purposes or uses whatever. 

ARTICLE 11. 



XLIX 

A. I). ih;ii. 



Open to all. 



Scboul f uQd. 



CHAUITAHLE AND PENAL INSTITUTIONS. 

Section 1. Institutions for the benefit of the insane, blind, chiuitabio ami 
deaf and dumb, and the poor, shall always be fostered and su})- tioiw." 
ported by this State, and shall be subject to such regulations as 
the General Assembly may enact. 

Section 2. The Directors of the Penitentiary shall be elected Penitentiarj-. 
or appointed as the General Assembly may direct. 

Section 3. The Directors of the benevolent and other State Directors, 
institutions, such as may be hereafter created, shall be appointed 
by the (Jovcrnor, by and with the consent of the Senate ; and 
ui)on all nominations made by the Governor the question shall 
be taken by yeas and nays and entered upon the journals. 

Section 4. The (Jovernor shall have power to till all vacancies vacam-ies. 
that may occur in the offices aforesaid until the next session of 
t lie General Assembly, and until a successor or successors shall 
Ite appointed and confirmed. 

Section."*. The respective Counties of this State shall iiiaki' rwiriaws. 
such provision as may be dctennined by law for all those in- 
habitants who by reason of age and intirrnities, t)r misfortunes, 
may have a claim upon the sympathy ami aid of society. 
4— A 




CONSTITUTION OF SOUTH CAROLINA. 

Section C Tlie Physician of the Lunatic Asylum, who shall 
L . 8> urn ^^^ Superintendent of the same, shall be appoiiitiMl liv the Gov- 
ernor, with the advice and consent of the Senate. All other 
necessary officers and employees shall be appointed by the 
(iovernor. / 

ARTICLE 12. 

COKPORATIOXS. 

Corporations. SECTION 1. Corporations may l)e formed under general laws; 
but all such laws may from time to time be altered or repealed. 

Taxauon of. Sectiox 2. The property of corporations now existing or here- 
after created shall be subject to taxation, except in cases other- 
wise provided for in this Constitution. 

Right of way. SECTION 3. No right of way shall be appropriated to the use 
of any corporation until full compensation therefor shall be first 
made, or secured by a deposit of money, to the owner, irrespect- 
ive of any benefit from any improvement proposed by such cor- 
poration, which compensation shall be ascertained by a jury of 
twelve men, in a Court of record, as shall be prescribed by law. 

Debts, Section -4. Dues from corporations shall be secured by such 

individual liability of the stockholders and other means as may 
be prescribed by law. 

Personal re- SECTIONS. All general laws and special Acts passed pursuant 
to this Section shall make j^rovisions therein for fixing the per- 
sonal liability of stockholders under proper limitations ; and shall 
prevent and punish fraudulent misropreseutations as to the 
capital, property and resources of such corporations ; and shall 
also regulate the public use of all franchises which have hereto- 
fore been, or hereafter may be, created or granted by or under 
the authority of this State, and shall limit all tolls, imposts and 
other charges and demands under such laws. 

Brnk-ing cor- SECTION 6. The Ceneral Assembly sliall grant no charter for 
porations. banking purposes, nor renew any banking corporations now in 
existence, except upon the condition that the stockholders shall 
be liable to the amount of their respective share or shares of 
stock in any such l)anking institution for all its debts and lia- 
bilities upon note, bill or otherwise, and upon the further con- 
dition that no director or other officer of sjiid corporation shall 
borrow any money from said corporation ; and if any director or 
other officer shall be convicted upon indictment of directly or 
indirectly violating this Section, he shall be punished by fine or 



CONSTITUTION OF SOFTH f'AKOLlNA. u 

^^ ~ A. D. l^i'Jl. 

iiiiprisoiuiu'iit, ill tlic (iiscri'linti of tin- CiMirt. The bookf?. papers ^""" r^-" 
•Aud accounts of all l)aiiks shall be open tu iiispoelioii. under 
■^ut'li regulations as may be prescribed by law. 

ARTICLE 13. 

MILITIA. 

Skction 1. The Militia of this State shall consist of all able- Miutia. 
))odied male citizens of the .State between tlie ages of eighteen 
and forty-five years, except such persons as are now, or may here- 
after be, exempted by the laws of tlie United States, or who may 
be adverse to bearing arms, as provided for in this Constitution ; 
and shall be organized, armed, equipped and disciplined as the 
(Jeneral Assembly may by law provide. 

Sectiox 2. The Governor shall liave power to call out the May be called 
militia to execute the laws, repel invasion, repress insurrection, " 
and preserve the public peace. 

Section 3. There shall be an Adjutant and Inspector-General Adjutant and 
elected by the qualified electors of the State, at the same time erar^^^"^"*"" " 
and in the same manner as other State officers, who shall rank as 
a Brigadier-General, and whose duties and compensation shall be 
j)rescribed by law. The Governor shall appoint, by and with the 
advice and consent of the Senate, such other staff officers as the 
General Assembly may direct. 

ARTICLE U. 

MISCELLANEOUS. 

Section" 1. No person shall be elected or appointed to any Quaiincatk ns 
office in this State unless he possess the qualifications of an forooicc. 
elector. 

Section 2. Lotteries, and the sale of lottery tickets, for any Lottorics. 
purpose whatever, are prohibited, and the (Jeneral Assembly 
shall prevent the same by penal laws. 

Section 3. The State Library shall Ije sulgect to such regula- smu- ubrao'. 
tions as the (General Assembly may prescribe. 

Section 4. The General Assembly may direct, ])y law, in what claims, 
numner claims against t}ie State may be established and adjusted. 

Section ">. Divorces from the bonds of matrimony shall not Divorces. 
be allowed but by the judgment of a Court, as shall be prescribed 
by law. 

Section' (>. Xo person who denies the existence of the Supreme di«hi«iii1(u- 
Heinsx shall hold anv office under this Constitution. "**" t^romcc. 



property 



causes. 



Ill CONSTITUTION OF SOUTH CAlJoiJXA. 

A. D. IWM. ~ ' ~ 

■"■^ — >^ ' Section' T. The printing of the laws, journals, bills, legislative 

'''^' doeujiu'iit.s and papers for ear-h l)ran<-h of tlie (loncral Assembly, 
witli tlie printing recpiired for tlie Kxecutive and other depart- 
ments of the State, shall be let, on contract, in such manner as 
shall be prescribed by law. 

woiiiairs Skctiox S. The real and personal property of a woman held 
at the time of her marriage, or that which she may thereafter 
acquire, either by gift, grant, inheritance, devise, or otherwise, 
shall not be subject to levy and sale for her husband's debts, but 
shall be held as her separate property, and may be bequeathed, 
devised or alienated by her the siime as if she were unmarried : 
Providefl, That no gift or grant from the husband to the wife 
•shall 1)6 detrimental to the just claims of his creditors. 

Removal o f SECTION 9. The General Assembly shall provide for the removal 
of all causes which may be pending when this Constitution goes 
into effect to Courts created by the same. 

Election of Sectiox 10. The election for all State officers shall take place 
state o cere. ^^ ^j^^ same time as is provided for that of members of the Gen- 
eral Assembly, and the election for those officers whose terms of 
service are for four years shall be held at the time of each alter- 
nate general election. 

ARTICLE 15. 

AMENDMENT AND REVISION OF TUE CONSTITUTION. 

Amendments SECTION 1. Any amendment or amendments to this Constitu- 
tion.^ °°^' '"" tion may be proposed in the Senate or House of Representatives. 
If the same be agreed to by two-thirds of the members elected to 
each House, such amendment or amendments shall be entered on 
the Journals respectively, with the yeas and nays taken thereon ; 
and the same shall be submitted to the qualified elector* of the 
State at the next general election thereafter for Representatives, 
and if a majority of the electors qualified to vote for members 
of the General Assembly voting thereon shall vote in favor of 
such amendment or amendments, and two-thirds of each branch 
of the next General Assembly shall, after such an election and 
before another, ratify the same amendment or amendments by 
yeas and nays, the same shall become pju"t of the Constitution : 
Provided, That such amendment or amendments shall have been 
read three times, on three several days, in each House. 
If two or more. SECTIONS. If two Of more amendments shall be submitted at 
the same time, they shall be submitted in such manner that the 



CONSTITUTION ol' Sol'TII CA IJOLI \"A. 



electors shall vote for or ngJilnst oiivh of siu-h amoiuhnents sep- 
arately. 

Skctiov ;>. WluMicviT two-tliinls ol" tlu- iiicinhnr.s cku^ted to 
each l)raiu'h of tlie (ieiieral Asscmhly shall think it necessary to 
call a convention to revise, ameinl (»i- change this Constitution, 
llu'V shall reconinuMid to the eleet(»rs to vote at the next election 
lor Representatives for or against a convention, and if a majority 
of all the electors voting at said election shall have voted for a 
convention, the Clenoral Assemhly shall, at their next session, 
provide l)y law for calling the same ; and such Convention shall 
consist of a number of members not less than that of the most 
nnnierons branch of the General Assembly. 




Convention!!. 



AMENDMENTS. 



ARTICLE 10. 

To the end that the public debt of South Carolina may not prohibitinp 
hereafter be increased without the due consideration and free wiVVoVt i-on- 
consent of the people of the State, the General Assembly isp^".'*' ^**^" 
hereby forbidden to create any further debt or obligation, either ^^~'^^ ^^'■' ^*'''- 
by the loan of the credit of the State, by guaranty, endorsement, 
or otherwise, except for the ordinary and current business of the 
State, without first submitting the question as to the creation of 
any such new debt, guaranty, endorsement or loan of its credit 
to the people of this State at a general State election ; and unless 
two-thirds of the qualified voters of this State voting on the 
question shall be in favor of a further debt, guaranty, endorse- 
ment or loan of its credit none such shall be created or made. 

AMENDMENT TO ARTICLE 2, SECTION IL 

Strike out all that ])ortion of Section 11, Article 2, following Amendment 
the words "eighteen hundred and seventy," occurring in the u'*"}?,?,^ (u-tl.l 
fourth and fifth lines, and insert the following : * 'And forever 1;^^/^^^^" 
thereafter, on the first Tuesday following the first Monday in 1873, xv., 407. 
November in every second year, in such manner and at such 
places as the Legislature may provide." 



F.iv CONSTITUTION OF SOUTH CAROLINA. 



A. D. 1804. 

' ' AMENDMENT TO ARTICLE 3, SECTION 2:3. 

Art. 3. Sec iw, Strike out of Section "^3 of Article 3 tlie word "four," (jccur- 
oitk*,"aim"u('d! ring in the third line, and insert the word "two," so that the 
isrs, XV.. uKXi. Section of the Con.stitution will read, when amended, as follows: 
••StXTiON 23. There shall be elected, by the qualilicd voters 
of the State, a Comptroller-General, Secretary of State, Trea- 
surer, Attorney-Ceneral, Adjutant and Inspector-CJeneral, and 
Superintendent of Education, who shall hold their respective 
offices for the term of two years, and whose duties and compen- 
sation shall be prescribed by law." 

AMENDMENT TO ARTICLE 2, SECTION 3. 

"Toxaway" That Section 3 of Article 2 of the Constitution of the State 
""white Water"" be amended by striking out the words " White Water River," in 
1875, XV., 1014. i}iQ fifth line of said Section, and inserting in the place thereof 
the words "Toxaway River." 

AMENDMENT TO ARTICLE 10, SECTION 5. 

Tax of t w " The Boards of County Commissioners of the several Counties 
"h'^is"'" P"**"^ shall levy an annual tax of not less than two mills on the dollar 
1S78, XVI., 6.S9. upon all the taxable property in their respective Counties, which 
levy shall not be increased unless by special enactment of the 
General Assembly, for the support of public schools in their 
respective Counties, which tax shall be collected at the same 
time and by the same officers as the other taxes for the same 
year, and shall be held in the County treasuries of the resj)ective 
Counties, and paid out exclusively for the support of public 
schools, as provided by law. There shall be assessed on all tax- 
poiitax. able jiolls in the State an annual tax of one dollar on each poll, 
the proceeds of which tax shall be applied solely to educational 
purposes : Provided, That no person shall ever be deprived of 
the right of suffrage for the non-payment of said tax. No other 
poll or capitation tax shall be levied in the State, nor shall the 
amount assessed on each poll exceed the limit given in this 
Section. The school tax shall be distributed among the several 
school districts of the Counties in proportion to the respective 
number of pupils attending the public schools. No religious 
sect or sects shall have exclusive right to or control of any part 
of the school funds of the State, nor shall sectarian principles be 
taught in the public schools." 



CONSTITUTION OF SOUTH CATJoMNA. 




AMENDMENT lO AHTICLE 2. SPX'TION 32. 

'I'luii Section ;3'v*, Artirle '.', of tlu- Constitulion of this State Art. 2. r<^-. 32. 
l.r, and is hereby, stricken out, and the following inserted in Si'm-S"'***"' 
lien thereof : ihho. xvii.. ;j;w, 

*' The (leneral Asseinhly sliall enact such laws as will exeniijt 
from attjichment and sale under any mesne or linal process issued 
from any Court, to the head of any family residing,' in this State, 
a homestead in lands, whether held in fee or any lesser estate, 
not to exceed in value one thousand dollars, with the yearly 
products thereof ; and to every head of a family residing in this 
State, whether entitled to a liomostcad exemption in lands or 
not, personal property not to exceed in value the sum of five 
hundred dollars : Provided, That in case any woman having a 
separate estate shall be married to the head of a family who has 
not of his own sutKcient property to constitute a homestead as 
hereinbefore provided, said married woman shall be entitled to 
a like exemption as provided for the head of a family : Provided, 
further, That there shall not be an allowance of more than one 
thousand«dollars' worth of real estate and more than five hundred 
dollars' worth of personal property to the husband and wife 
jointly : Provided, That no property shall be exempt from 
attachment, levy or sale for taxes, or for payment of obligations 
contracted for the purchase of said homestead or the erection of 
improvements thereon : Provided, further, That the yearly pro- 
ducts of said homestead shall not be exempt from attachment 
levy or sale for the payment of obligations contracted in the 
production of the same. It shall be the duty of the General 
Assembly at their first session to enforce the 2)rovisionB of this 
Section by suitable legislation." 

AMENDMENT TO ARTICLE 8, SECTION 8. 

That Section S, Article 8, of the Constitution be amended Buririao. lar- 
by inserting therein after the word '"murder" the following ',,;;.^'^^y';;;'"J",',^,^,;. 
words: '* burglary, larceny. i)erjury, forgery or any other in- ;;^1;;;^ X!;;'",'^ 
famous crime." So that the Section when amendetl shall rea<l as ;H-< *i » « 1 J " ;• » 
follows: " Si:<ri(>N' S, The CJeneral Ass^Mubly shall never pass issi. ivui., a. 
.auy law that will deprive any of the citizens of this State of the 
right of suffrage, except for treason, murder, burglary, larceny. 
perjury, forgery or any other infamous crime, or dueling, whereof 
ihe j)ersou shall have been duly tried and convicted." 




CONSTITrTIOX OF SOUTH CAROLINA. 



AMENDMENT TO ARTICLE 2, SECTION 11. 

Biennial eieo- That Sectiou 11, Article 2, of the Constitution of this State 
by The" L»^ni»ia- l>e, and the same is hereby, stricken out and the f(jllowin|^ 
'"sk'xviiTT JDserted in lieu thereof : 

*' The general election for Senators and Representatives shall 
be held in every second year, in such manner, at such time and 
at such places as the Legislature may provide." 

AMENDMENT TO ARTICLE ->, SECTIONS 4 AND 5. 
Sections 4 nmi Scctious 4 and 5 of Article 2 stricken out and the following 

5 of the Constl- . . , r. ■• , 

tiition stricken inserted as Section 4 : 

serted as Sec- " That Article two (2) of the Constitution of the State of South 

-^-r ' ,_ .on Carolina be, and the same is herebv, amended so that in place 

lOOO, XIX., iW. _ • ' _ i 

of Sections 4 and 5 of said Article the following shall be substi- 
tuted, and shall be kno\vn as Section 4 thereof, to wit : 

'' Sectiox 4. The House of Representatives shall consist of one 
hundred and twenty-four members, to be apportioned among 
the several Counties according to the number of inhabitants 
Census. contained in each ; an enumeration of the inhabitants for this 

purpose shall be made in eighteen hundred and ninety-one, and 
shall be made in the course of every tenth year thereafter, in 
such manner as shall be by law directed : Provided, That the 
General Assembly may at any time in its discretion adopt the 
immediately preceding United States census as a true and correct 
Apportionment enumeration of the inhabitants of the several Counties, and make 

u n d e r U. S. . . - t. 

Census. the apportionment and assignment of Representatives among 

the several Counties according to said enumeration : Provided, 
Proviso. however, This amendment shall not prevent the (Jeneral Assem- 
bly from providing for an enumeration and apportionment prior 
to 1891 in the manner now provided for by law." 

AMENDMENT TO ARTICLE 9, SECTION 14. 

That Section 14, Article 9, of the Constitution of the State 

of South Carolina be amended so as to read as follows : 

Character o f '' SECTION 1 4. Any debt contracted by the State shall be by loan 

stock to be is- on State bonds or stock, of amounts not less than one hundred 

staU", and the dollars each. bearing interest, payable semi-annually, and payable 

n-Kiytry." '^^'"^ within fifty years after the final passage of the law autliorizing 

i«89, 2UI., 536. gych debt. A correct registry of all such bonds or stock shall 

be kept by the Treasurer in numerical order, so as always to 



CONSTITUTION OF SOUTH CAh'ol.lNA. i.vii 

'~" ' A. D. WM. 

exliiliit (he iiuiiilu'r and amount unpaid, and t(» wlioin sevurully '*""~~-<^~~^ 
made payahlc. 

AMENDMKN'I' To ARTICLE 4, SECTION .'o. 

That Section 2(» of Article 4 of tlie Constitution of this 
State is herel>y stricken out and the following inserted in lieu 
thereof : 

" Section 20. A Court of Probate shall be established in each Tprm of it^ 
County, with jurisdiction in all matters testamentary and of phunge<i from 
administration, in l)usiness a])pertaining to minors, and the >t«i{ii. 
allotment of dower, in cases of idiocy and lunacy and persons '*•'. xx., .wi. 
lion compos mentis. The Judge of said Court shall be elected 
by the qualified electors of the respective Counties for the term 
of four years." 



I^TJLEIS 



OF THE 



SUPREME COURT, 

AMENDED AND REPUBLISHED. 



COMPILED BY ALBERT M. BOOZER, CLERK. 



RrLHSOFTIIl: SlTRF.Mi: CUl RT 

NOW l.\ FORCE. 



to^iw flu?u ^^*^^° ^' ■^^'' ^'^^' purpose of an appeal to this Court, the ai)pelhint 
shall cause the return to Ije made and filed with the Clerk of this 
Court within twenty days after tlie record constituting said 
return has been completed : Provided, That upon an ex parte 
application to any one of the Circuit Judges, upon good cause 
shown, the time for fding the return may be extended, not, how- 
ever, beyond twenty days. If he fail to do so within the time 
Dismissal of prescribed bv this rule, the appellant shall be deemed to have 

appeal for want ^ ' >■ *■ 

of pi-osecution. waived the appeal, and, upon an affidavit to that effect and the 
certificate of the Clerk of this Court that no return has been 
filed as above required, the respondent may obtain from the 
Clerk of this Court an order dismissing the appeal for want of 
prosecution, with costs, and the Court below may thereupon 
proceed as though there had been no notice of appeal : Provided, 

Motion to re- Jiowever, That upon it being made to appear to the satisfaction 
of this Court that such default on the part of the appellant has 
arisen from some excusable neglect, he may, on motion, upon at 
least four days' notice, apply to this Court for an order reinstat- 
ing the appeal : Provided, further. That upon a proper showing 
for that purpose, the Court before whom the motion is made 
may prescribe a shorter time. 

Return ; what II, When the appeal is from a judgment, the return spoken 
of in the foregoing Kule shall consist of copies of the Judgment 
Roll, the notice of appeal and exceptions, certified to by the 
Clerk of the Court below. When the appeal is from an Order, 
as allowed by the eleventh Section of the Code of Procedure, the 
return shall consist of copies of the Order appealed from, with 
the papers upon which the Court below acted in granting the 
Order, together with the notice of appeal and the exceptions : 
Provided, Iioirever, If the j)arties agree upon a statement of the 

15 Stat., 803. case^ j^ allowed by an Act entitled "An Act to facilitate and 
save expenses in a]»peals,'' approved the 5th of March, 187o, 
such statement, with the notice of appeal and exceptions, shall 
constitute the return. 



RULES OF THE STPRKM !•: coiirr. lxi 

IN. If saiil i-('tiini Ik- dcfoctive, citlirr piirty may. on aflidavit ""■ ^ 

spccityini,'- the (Icrcct . ami after ciiflit days' notice to the opposite 
])arty. ajiply to onecd' the .Justices of this Court for un order that dcfw'tl!' * 
the apjieihmt cause a further return to he made without delay. 

IV^. The attorneys an<] guardians ad litem of the re8j)ective Attorneys: 
parties in the C'ourt behiw shall he deemed tiie attorneys and Mtum. 
guardians of the same parties respectively in this Court until 
others shall he retained or appointed and notice thereof shall 
he served on the adverse ])artv. AVhen any party to a jud^rnient nppresenta- 

. "- J L J .in tlveti of deceas- 

I)rought ])y appeal into this Court shall die pending such apj)eal, eupurtii-s. 
any party in interest shall he entitled to move the Court for an 
order making the proper representative of such deceased person 
a party to such apjjcal ; aud when by reason of such decease the 
proi)er parties ap})ellant are not before the Court, and due means 
to have the projier i)arties represented on the record of this Court 
are not taken at the next ensuing term, the respondent shall 
be entitled, on due proof of such fact, to move this Court to 
dismiss such appeal. 

V. The " Case" required to lie served by the second .Section of case or Brief, 
the Act in relation to appeals, approved December 9, 1878, shall 
set forth the following particulars : 

1. The title of the action. what to contain 

2. The time of commencement of action. 

3. The names of all parties to the action, designating which 
of them are appellants and which are respondents. 

4. The general nature and character of the pleadings, specify- 
ing such defendants as answered or demurred, and the general 
nature of each answer Avhen several answers are filed. 

."). When issues of fact are settled, the order settling the same. 
(I. The mode in which the case was tried : whether by the 
Court, by a jury, or by referees. 

7. When error of law is alleged, the facts or conclusions of 
fact to which such error relates. 

8. When error of fact is alleged, the evidence or fact on which 
the determination complained of was based. 

!l. The judgment, order, finding, ruling or decision complained 
of. 

10. If error is alleged in the charge to the jury, the request to 
charge, the charge and exceptions. 

11. When the question to be determined involves the construc- 
tion of any pleading, judgment, order, charge or instrument, the 
whole matter thereof shall be set forth ; but if only some matter 



LXII 



RULES OF THE SUPKEMK COV^HT. 



Exceptions. 



Case. 



A. D. 18JM. 

""" — N^ ' constituting;; a di.stinet and .sej)arat(! part thercM^f is involved in 

siicli construction, only such distinct and separate i)art need be 
stated in full, and the residue thereof may be briefly stated 
accordiiifj to its general nature and cfTcct. 
1^. All changes in parties. 

13. The date of the judgment or order appealed from. 

14. Copy of the exceptions. 

Provided, however, If the parties agree upon a "statement of 
the case," as allowed by an Act entitled "An Act to facilitate 
and save expenses in appeals," approved March 5, 1875, such 
statement shall constitute said "Case." If the case is volumi- 
nous, an index to the pleadings, exhibits, depositions and other 
principal matters shall be added. 

An exception for the purpose of an appeal must contain a 
statement of the proposition of law or fact which it is desired to 
review ; and a mere reference to an exception taken to the report 
of the Master or a Referee, or to the decree of a Judge of Pro- 
bate, will not be sufficient, and an exception so takeii will not be 
considered. 

In the preparation of the ''Case" for argument in this Court, 
where amendments have been proposed and allowed, the " Case" 
must be printed ; or in a Case where jirinting is dispensed with, 
must be written as it would read after the amendments allowed 
are incorporated ; and it will not be sufficient to set out the pro- 
jDO-sed amendments with a statement as to which of them have 
been allowed. 
Amendments. These amendments shall not apply to any appeal taken before 
the 1st day of July, 1882. 

If a respondent in a case, in which such a practice is allowed, 
desires to sustain the judgment appealed from upon other 
grounds than those upon which it is rested by the Circuit Judge, 
he must give written notice thereof to the attorney for appellant, 
stating the additional grounds upon which he proposes to rely ; 
and said notice must be served in time to have the same printed 
in the " Case " as prepared for argument in the Supreme Court. 
[See CircTiit Court Rules. No. 50.] 

VI. All papers printed for the use of the Court shall be on 
white writing paper, in book form ; and each Case or other paper 
comprising more than two leaves shall he stitched or bound. 
Such printed matter shall conform, as to external form and 
dimensions, and as to dimensions of })vintcd page, to the volumes 
of the current series of the South Carolina Reports. 



Printed papers; 
how prepared. 



RULES OF THE bUPh'ivMI'. Colin'. i.mii 

A. IJ. IVU. 

Siiijill pica solid is tlie smallest and most compact mode of ' ' 

coiuposition allowed. 'I'he folio (of one Imndred words), nuni- 
lK'i"iii!4' from the comnienceinent to the end of the case, shall lie 
printed on the outer margin of the page. 

Each separate paper printed for the use of the Court shall. Title, 
instead of being endorsed, set f(»rth on the first page, or, if 
covered, on the first page of the cover, the following particulars: 
The style of the Court, the title of the cause, which, in case of 
an appeal, shall stand as it stood in the Circuit Court, without 
further change than adding the words ''Appellant" and "Re- 
spondent,'' so as to indicate the parties appealing to this Court, 
the nature of the paper, and the names of the attorneys. 

No charge for printing the papers mentioned in this rule shall Efff-otof non- 

1 11 n^ 1-1 , • T n I- coinpllancf'With 

bo allowed as a disbursement m a cause unless the foregoing this kui.-.. 
requirements shall be shown, by affidavit, to have been complied 
with in all papers hereafter printed, nor where the Brief shall 
be held l)y the Court to be insufficient. 

\'l 1. Within twenty days after the *' Case " has been settled or cascor Brief ; 
agreed upon, the appellant shall serve three printed copies of of non-wmpii- 
the Case, or Brief, as prepared for argument, on the attorney of 
the adverse party. If he fail to do so, the respondent may, by 
notice in writing, require the service of such copies within ten 
days after the service of the notice ; and if the copies be not 
served in pursuance of such notice, the appellant shall be deemed 
to have waived the appeal ; and on an affidavit proving the 
default and the service of such notice, the respondent may enter 
an order with the Clerk, dismissing the appeal for want of prose- 
cution, with costs ; and the Court below m;iy thereupon proceed 
as though there had been no appeal. 

VIII. Three da3's previous to the commencement of the argu- case or Brief; 
ment of any case, the counsel for the appellant shall deliver to di"|K,^e<i''of. ^^ 
the Clerk of the Court six copies of the Case or Brief, which 
shall be disposed of as follows : one copy to etich of the Judges, 
one for the Clerk, one for the Reporter, and one for the Library 
of the Supreme Court ; and at the same time each party shall 
deliver to the Clerk eight copies of the points, as required by 
K'ldo IX, six copies to be disposed of as above stated, and the 
nMii.iiiiing two copies to be delivered to the counsel of the other 
party on demand. Parties failing to furnish points will be con- 
linetl to the discussion of questions that arise u])on such points 
its shall be furnished by other parties to the cause in accordance 
with this Rule. 



LXiv niLKS OF THE SUPREME COURT. 

A. D. IBW. " 

''■ — V — ' IX. The ])()iiits ii'lVrred to in 'Rule VIII shall be jjreceded by 
points and uu- Ji brief stiiti'ineiit of tlie nature of the action and defenses, and 
the nature of the questions brouglit up by appeal, and shall set 
forth tlie propositions of law and fact relied on, and a note of 
the autliorities and reference by folio to the evidence when an 
examination of the evidence is necessary. At the opening of 
the case such statement shall be first read, after which counsel 
may read such portions of the record as they may deem neces- 
sary for a i)ropcr understanding of the points juade. But this 
Court will not consider any fact which does not appear in the 
" Case " as prepared for argument in this Court ; and, therefore, 
it is altogether us'.'less for counsel to embody in their arguments, 
or in the statement of facts preceding the points and authorities 
required by this Rule, any fact which does not appear in the 
"Case" as agreed upon or settled. Xor will any fact stated in 
the exception or grounds of appeal which does not appear in the 
*'Case" be considered by the Court. If counsel desire to add 
any facts to those stated in the "Case,'" they must either obtain 
the written consent of opposing counsel to the insertion of such 
additional facts, or they must, upon due notice, move this Court 
before the argument commences to recommit the " Case" to the 
Circuit Court for amendment. 
Docketing X. Upon the filing of the return of the Court below, in con- 
docket.' formity with the rules of this Court, the cause will be docketed by 
the Clerk. Causes will be placed upon the docket according to 
tlie respective Circuits in which they originally depended, and 
in the order in which the returns were tiled. Every cause shall 
be docketed before the first day of each term, and not after- 
wards except by consent of the opposite party. 
Default of ap- XI. If, on the call of a cause, either party fail to appear, or 
Sp^*^^'*"^ ^^ shall neglect to furnish and deliver the papers required by Rule 
VIII, the opposite party may proceed as ff>llows : The appellant 
may argue or submit the cause in his l)ehalf, the respondent may 
have an order dismissing the appeal. When neither party appear 
to argue on the call of a cause, it will stand continued at the lirst 
term, 
criminal XII. Criminal causes shall have a preference, and may be 
hiring" " moved, on behalf of the State, out of their order. 
Counsel; iim- XIII. Ill the hearing of causes in this Court, counsel will be 
te n t me. jjij^ited to two hours on each side, in which will be counted the 
time occupied in reading the Brief or Case ; and the time thus 
allowed may be apportioned amongst the counsel on the same 



RULES OF THE SCI'I.'K.MK COCin'. i.nv 



Bide at their (liscrelion : PraridiiL Innrrrvr, Tliut such time nuiy < — ' 

lie extended upon special applicalioii. in writinj,', to he filed hefore 
the case is called for hearinf,^ stating' reasons satisfactory to the 
Court for such extension. 

Hereafter counsel, in the course of their arffunicnt. will not Not to rwwi 
III" pninitted to read from hooks, except l)y special leave of the 
( 'ourt, which Avill only be granted in such exceptional cases as in 
the o|)inion of the Court may call for a dei)arture from this Rule. 
\\ hen counsel wish to quote from hooks, they will he required 
to use written or printed extracts therefrom. 

XIV. No member of the Bar or officer of the Court shall .si<i;n. M.rabers of 
as surety, any bond or other o])ligation which may be required wrsofthi-coiin 
by any order of this Court, under pain of being in contempt. sureties. "* 

XV. No member of the Bar will be heard unless wearing a Mi-mhers of 

, , , , the bar ; dress. 

I)lack coat. 

XVI. No affidavit will be considered bv the Court which has Attorneys: 

1 i 1 J? ii J- J.1 ;. aflldavlis l)efore 

been sworn to before an attorney engaged m the cause or matter, 
or before any party interested therein. 

XVII. Counsel shall not attempt to argue or explain a case, N'> anrumem 

.ii'~, IT 11 siter decision. 

or any matter arising therein, alter he has been heard and the 
opinion of the Court has been pronounced. 

XVIII. No i:)rivate agreement or consent between the parties consent must 
or their attorneys in respect to the proceedings in a cause shall 

be binding, unless the same shall have been reduced to the 
form of an order by consent and entered ; or unless the evidence 
thereof shall be in writing, subscribed by the party against whom 
the same shall be alleged, or by his attorney or counsel. 

XIX. Motions, other than those that arise on the call of a special mo- 

tlon8;wheu 

cause, will be heard at the opening of the Court on the morning hem-d. 
of the day fixed for the call of causes from the Circuit to which 
they appertain, and not afterwards without the special leave of 
the Court. 

When a party intends to move the Court that an appeal be Notice, 
dismissed, or the cause stricken from the docket, for any irreg- 
ularity in the taking of the appeal, or in the record filed in this 
Court, such motion must be made at the time assigned by this 
Rule for the hearing of special motions. All motions, whether 
made before the Court, or a Justice at chambers, as to all mat- 
ters of fact involved not appearing on the record filed in this 
Court, and not appertaining to the class of which this Court 
lakes judicial notice, must be made on affidavits, copies of which 
must be served on the opposite party, with notice of the motion, 
5— A 



Lxvi RULES OF THE SUPREME COURT. 

A. D. 1894. 

' ^ — ' in conformity with Chapter XL. Title 12, Second Part of the 

418. ''' Code of Procedure, at least four days before the day on which 

such motion may be heard : Pitivided, That uj)on a proper 

showing for that purpose, the Court, or Justice before whom the 

motion is made, may i)rericribe a shorter time. 

Remittitur; XX. Tile remittitur jjhall contain a copy of the judgment of 

t-)iK>sinttothe the Court, and shall be sealed with the seal and signed by the 
Clerk of the Court, and shall not be sent to the Court below 
until ten days after the final determination, unless this Court 
shall otherwise direct. When a decree or order shall be affirmed 
or an appeal dismissed by default of appearance by the appel- 
lant, the remittitur shall not be sent to the Court below, unless 
this Court shall otherwise direct, until ten days after notice of 
the affirmance or dismissal shall have been served on the attor- 
ney of the party in default. Service of notice shall be proved 
to the Clerk, by affidavit, or by written admission of the attor- 
ney on whom it was served, 
stay of remit- On application to either of the Justices at chambers, an order 
may be granted for a further stay of the remittitur for such 
time as he may deem proper, not beyond the third day of the 
ensuing term, subject to the order of the Court : Provided, A 
petition for that purpose be presented, stating specifically the 
How obtained, grounds of such application, with a certificate from some counsel 
not concerned in the cause that there is merit in such grounds, 
accompanied with a consent in writing signed by the parties, and 
not by their counsel, that the stay of the remittitur shall be 
granted upon condition that the status of the property involved 
in the case shall not be disturbed until after the final determina- 
tion of the case. 
Order for ex- XXI. The time prescribed by these Rules for doing any act 

or stey of pro- may be enlarged by the Court, or by either of the Justices 
DRs. tliereof ; and either of the Justices may make orders in any 

cause pending in this Court to stay proceedings, which, when 
served, with the papers on which it was made, shall stay the 
proceedings, according to the terms of the order. Any order 
may be revoked or modified by the Justice who made it, or, in 
case of his absence or inability to act, by eitiier nf tlie other 
Justices. 

EijmruoTiHeT. XXII. To make the service of an ex parte order, or rule to 

show cause, effectual, a copy of the affidavits, or other proofs on 

Rule to show which it was granted, must be served with a copy of such order 

ofrTOniempt.*^^ or rule ; and in order to bring any person into contempt for the 



RULES OF THE SUPREME COURT. i.wii 

■ ■ A D. I".'!. 



disohi'dic'iK'i' of ill! onliT, the original order iiiiist l)e exhibited '" '' ^ 
to sueli person, iind u copy thereof left with hini. When any 
})erson avoids the service of an order, on application to this C(»urt, 
or to one of the Justices thereof, making proof of such fact, 
sj)ecial directions will be given as to the service thereof. 

XXIII. Applicants for adn)ission to practice as attorneys and Appiirantf for 
counsellors in this Court, who are entitled to examination, shall pmctrc!"-. "° 
be examined in ojien Court, at a regular term thereof, and no 
j)rivate examination shall l)e permitted. Applications therefor 
shall be in writing, accompanied by the proofs required by law, 
and shall be filed on or before the second Tuesday of each regular 
term. After the jietitions are filed, a day for examination will 
l)e appointed, of which due notice will be given. 

In pursuance of an Act entitled "An Act to enable citizens of cause of study, 
this State to apply for admission to the Bar/' approved Decem- 
ber 23, 1879, the following course of study is hereby prescribed 
for persons wishing to apjsly for admission to practice in the 
Courts of this State, viz.: Blackstoue's Commentaries; Kent's 
Commentaries ; Parson on Contracts, or Chitty on Contracts ; 
Daniel on Negotiable Instruments, or Chitty on Bills ; Williams 
on Executors ; Pomeroy on Remedies ; Greenleaf on Evidence ; 
Story's Equity Jurisprudence, or Adams' Equity ; Daniel's Chan- 
cery Pleading and Practice ; Bishop on Criminal Law ; Bishop 
on Criminal Procedure ; Constitution of the L^nited States ; Con- 
stitution of South Carolina ; General Statutes of South Carolina, 
and all Acts of a public nature which have been passed since the 
adoption of the General Statutes ; Rules of Supreme Court, Cir- 
cuit and Probate Courts. 

In accordance with the provisions of the foregoing Act of the rui<« asm 
Legislature (19 Stat., 5"21,) requiring the examination of appli- att<.rue>s. """ 
cants for admission to the Bar to be in writing, the following 
Rules are established for the conduct of such examination : 

1. The examination will be conducted in the Supreme Court 
room, during which no perstm will be admitted to the room 
except the Justices of the Sui)reme Court, the applicants and 
the officers of the Court. 

2. Each applicant will be furnished with a copy of the ques- 
tions to be answered, numbered in regular order, together with 
the stationery necessary for the preparation of the answers, which 
must be numbered in the same orders as the questions. 

;}. Each applicant, as he completes his answers, will sign the 
certificate appended to the questions, deliver the same, both (pies- 



Lxviii RULES OF THE SUPREME COURT. 

A. D. 1894. ; """" 

^""^v ' tions :in(l answers attached together, to the Clerk of tlie Court, 
aud retire from the room. 

4. No conversation upon any subject will he permitled in the 
Court room during the progress of the examination. 

5. The examination pajjort; will be delivered by the Clerk to the 
Justices of the Court sis soon as they are completed, and the 
result will be announced by the Court as soon thereafter as prac- 
ticable. 

The attention of applicants is called to the provision of the Act 
of the Legislature requiring the payment of a fee of five dollars, 
in advance. 
Motions at XXIV. No motion will be heard by the Court, or by either of 
u..t be heard on the Justiccs at chambers, on written application. If the counsel 
tion. of record cannot attend, the motion must be submitted by coun- 

sel representing them. 
Rules; when XXV. These Rulcs, as hereby amended and republished, shall 
fonner^Ruies!' ' take effect on the 1st day of July, iJSTli, from which time all 
rules inconsistent herewith are abrogated, except so far as it may 
be necessary to follow them in cases where causes are alreiidy 
prepared for argument ; and except, also, that all cases not herein 
provided for are governed by the existing rules and practice of 
this Court and of the late Court of Appeals, so far as such rules 
and practice are conformable to existing laws. 

The State of South Carolixa, 
Supreme Court, November Term, 1893. 
I, Albert M. Boozer, Clerk of the Supreme Court of South 
Carolina, do hereby certify that the foregoing twenty-five Rules of 
Practice for the Supreme Court were duly adopted by said Court 
and are now in force. 

AVitness my band and the seal of the sjiid Court, at Columbia, 
this 19th day of February, A. D. 189+. 

ALBERT M. BOOZER, 
Clerk of the Supreme Court of South Carolina. 



RULES OF PRACTICE 

FOR THE 

CIRCUIT COURTS, 

AS 

AMENDED AND REVISED DECEMIJER 2()lli, 181)3. 



RULE I. 

Every Clerk of the Circuit Court who caunot produce the statutt* ami 
Statutes at Large, the Rules of Court and the Bar Calendar, " **' 
when required, shall be fined ten dollars for each default. 

RULE II. 

The several Clerks of the Circuit Courts shall keep in their cierk m keep 
respective offices a book, properly indexed, in which shall be 
entered the titles of all civil papers filed, the orders made, and 
the steps taken therein, with the dates of the several proceed- 
ings ; also, an index of all undertakings filed in the office, stat- 
ing, in appropriate columns, the title of the cause or proceeding 
in whicli it is given (with a general statement of its condition) 
or a reference to the Statute under which it is given, the date, 
when and before whom approved, and when filed, with a state- 
ment of any disposition or order made of or concerning it ; and 
such other books, properly indexed, as may be necessary to enter 
the minutes of the Court, record judgments, enter orders and all 
necessary matters and proceedings. 

RULE III. 

The Clerk shall not enter, without special leave of the Court. Entnuf u.ilt- 
any judgment until the expiration of five days after the Court ™''°'' 
has adjourned for the term. 

RULE IV. 

SHERIFF. 

The Sheriff shall file with the Clerk the affidavits on which an siuTiti to nif 
an-est is made, witliin five days after the arrest. n^l^"*'''" '"■' 



I. XX RULES OF PRACTICE FOR CIRCUIT COURTS. 

A. D. 18W. 



" V ' RULE V. 

Sheriff com- At any time after the day when it is the duty of the Sheriff, or 
{)r<Krss. "^ "™ otlier officer, to return or deliver or file any process, undertak- 
ing, orders, or other papers, by the provisions of the Code of 
Procedure, any party entitled to have such act done may serve 
on the officer a notice to return, deliver or file such process, un- 
dertaking, order, or other paper, as the case may be, within ten 
days, or show cause, at a time to be designated in said notice, 
why an attachment should not issue against him. 

RULE VI. 

Appointment ^0 pcrson other than the general guardian of an infant shall be 
WtHK*^^"" "^ appointed guardian ad litem, either on the application of the 
infant or otherwise, who is not fully competent to understand 
and protect the rights of the infant ; who has any interest adverse 
to that of the infant, or who is connected in business with the 
attorney or counsel of the adverse party ; nor shall the attorney 
of the adverse party represent the guardian ad litem. And the 
same rule as to the appointment of guardian ud litem shall apply 
to other persons incapable of representing themselves. 

RULE VII. 

Attorneys and Officers. 

Change of at- An attorney may be changed by consent, or upon cause shown, 
toraey. ^^^ npon such terms as shall be ju8t,^upon the application of the 

client, by order of the Circuit Judge, and not otherwise. 

RULE VIII. 

Dress of attor- The habit of the gentlemen of the Bar shall be black coats ; 
°^"^^' and no gentleman of the Bar shall be heard if otherwise habited ; 

and it shall be the duty of the Sheriff to attend to thq execution 
of this Rule. 

RULE IX. 

Attorneys and ^^ attorney or other officer of the Court shall become surety 
liot'^tlj V^ur™ upon any recognizance in the Court of General Sessions, or upon 
"<*• any undertaking in the Court of Common Pleas. Attorneys and 

other officers violating this Rule shall be punished as for a con- 
tempt of Court. 



KULES OF PRACTICE FOR CIRCUIT COURTS. 




RULK X. 

ir the plniiitilT ii'sides beyond the State, security for costs may swnrity for 
l)c required. Whenever security for costs shall be required, the *^'*' 
ri)ll()\\ing form, jind no other, shall be regarded as a conipliance 
with the order : 

' State of Soitii Cakoijna. } • 
County, f 

AB) 

rs. y Comjjlaini for 
CD)' 

I (or wo as the case may be) acknowlodge myself (or ourselves) 
liable for the costs of this case, and consent that if the plaintiff 
fail to recover, the defendant may liave execution for his costs 
against me, (or us as the case may be.) 

Civen under hand this day of , A. D, 18. . . 

EF, 
Witness : Approved : 

G H, G H, 

C. C. P. and G. S. C. C. P. and G. S. 

This Rule shall not be construed as to prevent the plaintiff, or 
others for him, when security is required, from depositing with 
the Clerk a sum sufficient to meet the costs of the action. 

In case of deposit the amount shall be fixed by the Clerk after 
a careful examination of the whole case, and he shall receipt 
therefor. 

RULE XI. 

Counsel shall not attempt to argue or explain a case, or any ADruiuent uiid 
matter arising therein, after he has been heard and the opinion Ji^anre^ '"^ '^' 
<>\' the Court has been pronounced ; nor shall one attorney inter- 
rupt another in the course of his argument without first obtaining 
the permission of the Court. 

Before the argument of the case commences the counsel on 
cither side shall read and submit to the Court in writing such 
propositions of law as they propose to rely on, which shall consti- 
tute the requests to charge : Pnividcd, /lowercr, That nothing 
herein contained shall prevent either counsel at the close of the 
argument from submitting such additional requests as may be 
suggested by the course of the argument, or from witlid rawing 



Lxxii RULES OF PRACTICE FOE CIRCUIT COURTS. 

A. 1). isy4. 



^■' ^^ any (ir all of the requests submitted at the beginning of the 

iir;,^uinent. 

Counsel shall note in the margin opposite each request the 
authorities relied on in support of the propositions of law therein 
contained, and produce the same when required by the Court. 

HULK XII. 

Manner of All pleadings and other proceedings shall be written on each 
prt^HTing pa- gjjg ^f \Qgg] (.^p paper, except when type written or printed, 
(with a margin of one and a half inch on the left.) If more 
than two pages are used they shall V)e fastened at the top so as 
to read continuously. Papers shall be folded from the bottom 
in four equal folds, and endorsed with the style of the Court, 
the names of the parties, the nature of the paper, and the name 
of the attorney. 

RULE XIII. 

Pleadings t o All pleadings and other proceedings, and copies thereof, shall 
ten 'and'endors- ^56 fairly aud legibly -written or printed, and endorsed with the 
^- title of the cause ; aud if not so written or printed and endorsed, 

the Clerk shall not file the same, nor will the Court hear any 

motion or application founded thereon. 

RULE XIV. 

Consent must X^o agreement or consent between the parties, or their attor- 
he in w-riting. j^gyg^ j^ respect to the proceedings in a cause shall be binding, 
unless the same shall have been reduced to the form of an 
order by consent and entered ; or unless the evidence thereof 
shall be in writing, subscribed by the party against whom the 
same shall be alleged, or by his attorney or counsel ; or unless 
made in open Court and noted by the presiding Judge or the 
Stenographer on his minutes by the direction of the presiding 
Judge. 

RULE XV. 

DEFAULT ORDERS. 

^_, ^ ^ "When anv order is f»btained bv default the counsel obtaining 

Orders by de- • * , 

fault taken by the Same shall endorse his name as counsel on the iiaper contain- 
counsel. . * -^ 

ing the proof of notice, and the Clerk in entenng the order shall 
specify the name of such counsel. 



RULES OF PRACTICE VoU CWH'ITV Conri'S. 




RULE W I. 

master's ok refkree's ki:pi)|(t. 
Tlic Master or Rt'l'iM-cc in all oases of re fere nee, liaviiii; pre- Master or ui-- 

" ' foree to Ule n-- 

iiared his report, shall file the same in the Clerk's office, and at P"rt in ciorkv 
', . . . , 1 . , office- 

the same tune «rive notice to the attorneys enga,{;efl in the eanse 

of such tilinir, and the party who shall be dissatisfied therewith 

sliall, witliin ten days after such notice, serve his exceptions 

thereto. Such notiee of the tiling of the Master's or Referee's 

report sliall l)e deemed and taken as service of such report. 

RULE XVIL 

XOTICE OF APPEARAXCE OR RETAINER. 

Service of notice of a])pearance or retainer generally by an Notice of op- 
attorney for the defendant shall in all cases be deemed an appear- taiiner"^^ '^ 
ance. and the plaintiff on filing such notice, at any time there- 
after, with proof of service thereof, may have the appearance of 
the defendant entered as of the time when such notice was served. 

RULE XVIII. 

In all cases of more than one distinct cause of action, defense. Numbering 
counter-claim or reply, each shall be separately stjited and num- or grounds or 
bered ; and Avhere the defendant intends to set up a counter- ' *^ ^°^' 
claim, it shall lie distinctly entitled and designated as such. 

A demurrer must, in every case, be accompanied by a certifi- Demurrer, 
cate of the counsel filing it that it is meritorious and not 
inten,ded merely for delay. 

A motion to dismiss a complaint or answer on the ground that Motion t.. ais- 
the complaint does not state facts sufficient to constitute a cause ^ ^ 
of action, or the answer does not state facts sufficient to consti- 
tute a defense, must be in writing, stating wherein the i)leading 
objected to is insufficient. 

RULE XLX. 

Xo order extending the time to answer or demur to acorn- rimo to an- 
plaiut shall be granted unless the party applying for such order i^hj^" "vuifout 
shall present to the Judge to whom the application shall be JJ^'^^.*^*^'^ " 
imule a certificate of the attorney or counsel retained to defend 
the action, that, from the statement made to him by the defend- 
ant, he verily believes that the defendant has a good and sub- 



Lxxiv RULES OF PRACTICE FOR CIRCUIT COURTS. 

A. D. 1891. ' 

^-^~< stantial defense upon the merits to the cause of action set forth 

ftubst^uent in the Complaint or to some part thereof. And if any exten- 

exu-usluu. . . ^ * 

sion of tune to answer or demur has been previously granted, by 

stipulation or order, the fact shall be stated in the certificate. 

RULE XX. 

Motions to Motions to strike out of any pleading matter alleged to be irre- 
ings. levant or redundant, and motions to correct a pleading on the 

ground of its being " so indefinite or uncertain that the precise 
nature of the charge or defense is not apparent," must be noticed 
before demurring or answering the pleading, and within twenty 
days from the service thereof. 

RULE XXI. 

Defense of The defense of pletie adminisfravii shall not be effectual 
trariu ""'"^ unless the party making such defense shall file with the plead- 
ing, on oath, a full and particular account of the administration 
of the estate, with a certified copy of the inventory and appraise- 
ment; or, if the party be charged as executor of his own wrong, 
a full statement, on oath, of all the assets which have come into 
his possession, and the value thereof, and an account showing 
the manner in which the same may have been disposed of. 

RULE XXII. 

Real owner Where a tenant is sued for land of which he is in possession, 

fend action the real owner may, on motion, be admitted as a defendant to 

aga nan . ^^^ action, and shall be entitled to the service of a copy of the 

complaint, and to answer or demur thereto, as if he had been the 

original defendant. 

Whenever an action to recover the possession of real estate 
shall be brought against any person claiming to be the owner 
thereof, and such person intends to vouch any grantor under 
and through whom he claims title, he shall vouch such person in 
writing and before the time for answering has expired : and the 
person so vouched may, if he desires, be permitted to apply to 
the Judge of the Circuit Court in which the action is brought, 
within twenty days from being so vouched, to come in and make 
such additional defenses as he may desire. 



RULES OF PRACTICE VOU CIRCUIT COURTS. lxxv 

' ' " A. I). l^'U. 

RULE X.MII. ' . 

JTRIKH, 

1\) all writs of rniirr lor jurors, tlie Slierifl' iiiid iii.s deputies Vmirc and 

111 1 L\ \ n ii/iii -1^ . ffuinmons for 

sliall make a return, on oath, before the Clerk ot the Court from jurore. 
whicli the renirr issues, including in nuechn^s the names of those 
who have been summoned personally ; in the second class, of 
t hose for whom summonses have been left at their houses ; and in 
the tfiird class, of those who could not be found. The summons 
for each juror shall state the day, the hour, and the Court, at 
whicli he is to appear, the penalty for default, and, also, whether 
he is to serve as a grand or petit juror. 

RULE XXIV. 

If any juror, in attendance upon the Court, shall refuse or Derauitinir 
neglect to attend punctually, and to answer to his name when- ^"^°'^- 
ever the same shall be called, the Clerk shall note such default, 
and the defaulter shall forth\vith be served with a rule to show 
cause why he should uot l)e fined therefor. Upon the adjourn- 
ment of each term of the Court, the Clerk shall cause to be 
served by the Sheriff on each and every juror noted for non- 
attendance at that Court a notice, requiring him to show cause, 
by affidavit, at ten o'clock on the first day of the next regular 
term, why he should not be fined, according to law, for failing to 
attend and serve as a grand or petit juror, as the case may be. 

And on or before the first day of the next regular term the Judgment 
Sheriff shall make return of all such notices to the Clerk, who 
shall, after entering the same on the Contingent Docket, deliver 
them to the Attorney-General or Solicitor, and the Attorney- 
General or Solicitor shall, upon the call of the docket, move for 
the judgment of the Court thereon, 

RULE XXV. 

In the empaneling of a jury in criminal cases, where the right jury i« criiui- 
of peremptory challenge is claimed and allowed, a child under "" 
ten years of age shall, in the presence of the Court, draw one 
from the names of all the jurors in attendance, wliich one, hav- 
ing answered, shall be presented to the accused ; and so on until, 
in regular course, the panel l)e exhausted or a jury formed. 




RULES OF PRACTICE FOR CIRCUIT C0URT8. 



RULE XXVI. 

Common Pleas No C'lork shull outer a cause on tlie Calendar until the plead- 
ings are made up. And no cause shall be entered on the Calen- 
dar except by the Clerk or his Deputy. 

No cause shall be on more than one Calendar at the same time ; 
except in cases in which some of the defendants have pleaded 
and others have made default. 

Causes may be entered on Docket 3 at any time after the time 
for answering has expired and before the beginning of the term ; . 
after the beginning of the term no cause shall be entered on said 
Docket by the Clerk or his Deputy except by leave of the Court. 

Wlicre an issue has been settled by an order of the Court, the 
Clerk shall give it place on the Calendar according to the date 
of the order. 

The Clerk shall preserve the Calendars as records of tlie Court. 
He shall not only number the causes thereon, but shall indicate 
the number of terms they may have been at issue ; and he shall 
also, in a separate column, copy the memoranda of the disposi- 
tion of the case at the previous term. 

During the daily sessions of the Court the Calendars shall not 
be subject to the inspection of the Bar ; but it shall be the duty 
of the Clerk to make a copy of the several Calendars, in a Book 
designated " Bar Calendar,^^ for the use of the Bar. 

RULE XXVII. 



continuance. 



Motions for No motion for the postponement of trial bevond the term, 
either in the Common Pleas or Creneral Sessions, sluill be granted 
on account of the absence of a Avituess, without the oath of the 
party, his counsel or agent, to the following effect, to wit : That 
the testimony of the witness is material to support the action or 
defense of the party moving ; that the motion is not intended 
for delay, but is made solely because he cannot go safely to trial 
without such testimony ; that he has made use of due diligence 
to procure the testimony of the witness ; or of such other cir- 
cumstances as will satisfy the Court that his motion is not in- 
tended for delay. In all such cases where a writ of subpo-na has 
been issued, the original shall be produced, with proof of service, 
or the reason why not served, endorsed thereon, or attached 
thereto ; or, if lost, the same proof shall be offered, with addi- 
tional proof of the loss of the original subpa^na. 

A party applying for such postponement on account of the 
absence of a witness shall set forth under oath in addition to 



RULES OF PRACTICE FOR CIRCUIT COURTS. 




tlic fi)n'u'"iii.!,^ tiiiittors \\'h;it fiwi or racts lu; believes the wituess 
if ])i-(!Si'iit. would L'sLify t;) iiud Ihu ,t;Touii(is of such Ijolief. 

RULE XXVIIL 

lu oqnity casos whoro a trial by jury of issues of fact may be issue* in ptiuity 
desired, the party desiring a jury trial shall within ten days after uieul.y'jiiry" 
issue joined give ut)tice in writing of his inteiiti(jn to move the 
Court, upon the first day of the next term, immediately after the 
call of Docket No. 3, for an order requiring that the whole issue, 
or certain specified questions of fact ijivolved, be tried by u jury. 
With the notice of motion shall be served a copy of the questions 
of fact proposed to be submitted to the jury for trial and in 
])roper form to be incorporated in the order. If the adverse party 
desires to submit any other issue of fact to the jury, he shall 
within four days from the service of such motion ujion him 
notify the party giving the notice, iu writing, of his intention to 
move the Court, at the siime time, to submit certain issues to the 
jury for trial, specifying the issues. 

The Court on hearing the motion may settle the issues, if any 
are deemed necessary. 

RULE XXIX. 

It shall not be necessary to call the plaintiff when the jury railing pIhUi- 
return to the bar to deliver their verdict, and the plaintiff shall to nonsuit, 
have no right to submit to a nonsuit after the jury have gone 
from the bar to consider of their verdict. 

RULE XXX. 

On a hearing before a Master or Referee, the plaintiff mav submittinp to 

,. . T • 1 e ^ ■ ^ ■ ' noilBUlt Of (1|8- 

eubmit to a nonsuit or dismissal of his complaint, or mavbenon- mis^ui W'tore a 

, , . , • , 1 T ■ 1 • 1-1 ' Muster or R e- 

Buiteu, or his complaint be dismissed, in like manner as upon a foree; form of 
trial, at any time before the cause has been finally submitted to feree's rej>ort. 
the Master or Referee for his decision ; in which case the Master 
or Referee shall report according to the fact, and judgment may 
thereupon bo perfected by the defendant. 

Upon a trial by a Master or Referee, he- shall, in his decision proowniings on 
or report, state the fact.? found by iiim and his conclusions of t'ti^i'n'V.*" bo 
law .•separately, a copy of which shall be served with notice of **"^' 
tiie judgment; and the time within which exceptions may be 
taken to the report shall be computed from the time of such 
service. 



Lxxviii KULES OF PRACTICE FOR CIRCUIT COURTS. 

A. D. 18M. 

'""""v— ^ 111 references othtT than for the trial of tlie issues in an action, 
upon the coming in of the report of the Master or Referee the 
same shall be filed, and a note of the day of the tiling shall be 
euterafl by the Clerk in the proper book, under the title of the 
cause or proceeding ; and the said report shall become absolute 
and stand as in all things confirmed unless exceptions thereto 
are filed and served within ten days after service of notice of the 
filing of the same. If exceptions are filed and served within 
such time, the same may be brought to a hearing on the notice 
of any party interested therein. 

RULE XXXI. 

Examinatton ^^^ the trial of issues of fact, one counsel only, on each side, 
how'^conducted; shall examine or cross-examine a witness, and not more than one 
m"ing"up""r counscl ou each side shall sum up or be heard in any cause ; and 
hearing. during such examination the examining counsel shall stand ; 

and the testimony, if taken down in writing, shall be written 
by some other person than the examining counsel, but the 
Judge who holds the Court may otherwise order, or may dis- 
pense with this requirement : Provided, That the time of two 
hours, allowed by Statute, may be distributed among as many 
counsel on each side as they may desire. 

RULE XXXII. 

Papers to be The papers to be furnished on motions shall be a copy of the 

by'^whom. " ° ** pleadings, when the question arises on the pleadings, or any part 

thereof, or of such parts only as relate to the question raised by 

the demurrer; a copy of the special verdict, return or other 

papers ou which the question arises. 

Penalty for The party whose duty it is to furnish the papers shall serve a 
copy on the opposite party (except upon trial of issues of law) 
at least four days before the time the matter may be noticed for 
argument. If the party whose duty it is to furnish the papers 
shall neglect to do so, the opposite party shall be entitled to 
move, on affidavit and notice of motion, that the cause be 
stricken from the Calendar (whichever party may have noticed 
it for argument), and that judgment may be rendered in his 
favor : Provided, however. That in mortgage and partition cases 
where the plaintitf' s rights are not contested no copies of plead- 
ings need be furnished the Court. 



RULES OF PllACTICE FOR CIRCUIT COURTS. lxxix 



By whoiu. 



A. D. 1804. 

The papers sliall lie furnished by the phiintiff wlien the qucs- ^"^^' 
tidii arises on spi-cial venliet, unci l)y the party deniiirrin^ in 
eases of tlenuirrer, and in all other cases by the party making the 
motion. 

RULE XXXIIL 

CHANGE OF VENUE. 

No order to stay proceedings f(jr the purpose of moving to orrier to stay 
change the place of trial shall be granted unless it shall a})pear ^iluga vanu!" 
from the papers that the party moving has used due diligence in 
preparing the motion for the earliest j)racticable day after issue 
joined. Such order shall not stay the plaintiff from taking any Rooking stay; 
ste})S except subpcenaing witnesses for the trial without a special cation.*' '*''"" 
clause to that effect. 

RULE XXXIV. 

Commissions when executed shall be sealed up by the Commis- commissions, 
sioners who shall have executed the same, and directed to the Ld^how^o''^"n^ 
Clerk of the Court from which they were issued. Upon the 
envelope shall appear the names of the Commissioners, writteii by 
themselves across the place where the same is sealed, the title of 
the cause, and, when sent by mail, the proper post-mark. Com- 
missions shall not be opened but upon motion in open Court, 
or before a Master, or Referee or Referees, hearing the cause, or 
by consent of the parties, in writing, or by the Clerk, or Master, 
or Referee, upon request of any of the parties, and four days' 
notice to all parties of the time and place of such opening. 

AVhenever an original document or paper is enclosed in a com- 
mission, and such commission is opened in the manner herein- 
before provided, it shall be lawful, and the Clerk is hereby 
authorized, to take such original document or paper out of such 
commission and deliver the same to the party entitled thereto, 
to be used in taking other and further testimony in reference to 
such document or paper, the same having first been marked for 
identification. 

RULE XXXV. 

TltlAL IX GENEU.VL SESSIONS. 

No person shall be tried on an indictment unless personally preaence of 
present, except for misdemeanors ; and upon the trial of any per- [J^,"'^"*"' °° 



Particulars re 
quired. 



Lxxx RULES OF PRACTICE FOR CIRCUIT COURTS. 

A. D. IbJM. 

■~" ^^ son clmrged with an offense for which the hiw requires that he 

should be arraigned the prisoner shall he jilaced in the dock. 

RULE XXXVI. 

8UHVEYS. 

sunev^ how Survevs of land in any quantity of two hnndred acres or less 
ori?ere<i by the shull be laid down by a scale of ten chains to the inch ; all over 
court: noticeof that quantity, ))y a scale of twenty chains to the inch. 

No surve}' made under an order of the Court shall be received 
in evidence unless it appear that at least ten days' notice of the 
time and place of commencing such survey has been given to the 
parties. 

Every surveyor shall represent in his plat, as nearly as he can, 
the different enclosures of the parties, and the extent or bound- 
aries within which each party may have exercised acts of owner- 
ship. He shall also represent a fence, buildings, or the like, by 
a mark in due proportion in size, according to the scale of the 
plat. He shall, by some small but distinct letter or figure, dis- 
tinguish every corner, station, Idazed tree, or other point which 
is likely to be the subject of dispute. He shall take care nut to 
render the plat confused or indistinct by crowding too much 
upon it ; but he shall rather refer the letters or figures to a table 
(which may contain the courses and distances of lines, the marks 
at corners, stations and noted points, explanations and remarks.) 
than attempt to write much on the lines, or near to points on the 
plat. He shall also make two drafts or duplicates of the plat, so 
that on the trial there may be one for the use of the Judge, and 
the other for the parties in Court. 

After a canse has gone to a jury, and any evidence has been 
heard on it, neither party shall be allowed to make any objection 
to the order of survey, or the manner in which it may have been 
obtained, or the survey executed. 
Copy of Rule. A copy of this Rule shall be ajipended to every order of .survey 
served on a surveyor. 



Objections. 



RULE XXXVII. 



JUDGMENT AND EXECUTION. 



judRtnent on When tlie plaintiff in the action is entitled to judgment upon 
eer? when u] the failure of the defendant to answer the complaint, and the 
! applied for. j.g]jgf demanded requires application to be made to the Court, 



RULES OF PRACTICE FOR CIRCUIT COURTS. 




such jipplication must he made to the Circuit CNnirt in tlie 
County in which the action is triable. 

RULE XA.WIIi. 

In actions for the recovery of money only, when the summons Jndjnnpnt after 
lias been served by publication, under Section 15G of the Code, iiVation :' aoiilul 
and the defendant is a non-resident of the State, no judgment lug.' 
shall be entered unless the plaintiff, at the time of making the 
application for judgment, shall show, by attidavit, that an attach- 
ment has been issued in the action and levied upon property 
belonging to the defendant, which affidavit shall contain a spe- 
cific description of such property and a statement of its value 
and shall be attached to and filed with the affidavit of publica- 
tion ; nor unless the plaintiff shall at the same time produce 
and file with the Clerk an undertaking with two sureties to be 
approved by the Court, or the Clerk thereof, that the plaintiff 
will abide the order of the Court touching the restitution of any 
estate or effects which may be directed by such judgment to be 
transferred or delivered, or the restitution of any money that may 
be collected under or by virtue of such judgment, in case the 
defendant, or his representative, shall apply, and be admitted to 
defend the action, and shall succeed in such defense. 

RULE XXXIX. 

The Clerk shall record in the Judgment Book, at length, all Ju.i>mipnt njii ; 
judgments entered in his office, with the names of all parties, 
plaintiff or defendant, who have appeared, or been served with a 
summons therein, and the names of the attorneys, with the time 
and place of the rendition of such judgment and the number of 
the roll ; and when, by any judgment, any matter shall be ad- 
judged, or act or thing commanded, other than the payment of 
money, space sufficient shall be left after the entry thereof for 
the entering of such proceedings as may be thereafter had for 
the enforcement or satisfaction of such judgment. 

RULE XL. 

A\'hen a judgnienl rendered l>y the Supreme Court shall be Rtvordinj? 

certified to the Circuit Court it shall be the duty of the Clerk of s"pif«!iue "court! 

the Circuit Court to adjust the costs and disbursements in the 

Supreme Court to which any party may be entitled upon due 

. • , , • , ,11. , . , Adjusting coeta 

notice, as provided m tlie case of tiie adjustment of costs in tlie thereou. 
G— A 



Lxxxii RULES OF PRACTICE FOR CIRCUIT COURTS. 

A. D. 18W. ' ~ ' 

' V — -^ Circuit Court : ami he shall record such judgment and enter an 

abstract thereof in like manner as is provided in the case of 
judji^nients rendered by the Circuit C'ourt. At the foot of such 
record a reference shall be made to the pajre at M-hich the judg- 
ment appealed from is recorded, and a like reference sliall be 
entered at the foot of the entry of the original judgment to the 
page at Avhich the judgment on appeal is recorded. 

RULE XLl. 

SALE OF LANDS. 

sniPs of land AVhcu lands are directed to be sold at auction, notice of sale 
shall be given for the same time and in the same manner as is 
required by law on sales of real estate by Sheriffs on execution, 

RULE XLII. 

infants' money. 

General (ruiir- After the appointment of the general guardian of an infant 

dian ; security, j-^g gi^.^n j^q^ ]jg entitled to receive any money or other i)rop- 

erty to which the ward shall thereafter become entitled until the 

Court is satisfied, upon due inquiry, that ,he has given a good 

and sufKcient bond to account therefor. 

RULE XLIII. 

DISCOVERY OF BOOKS AND PAPERS. 

Application Applications may be made in the manner provided by law to 
how inafie?^*"^^' compel the production and discovery of books, papers and docu- 
ments relating to the merits of any civil action pending in this 
Court, or of any defense in such action, in the following cases : 

1. B}' the plaintiff, to compel the discovery of books, papers 
or documents in the possession or under the control of the de- 
fendant which may be necessary to enable the plaintiff to frame 
his complaint or to answer any pleading of the defendant. 

2. The plaintiff may be compelled to make the like discovery 
of books, papers or documents when the sjime shall be necessary 
to enable the defendant to answer any pleadings of the plaintiff. 

:}. Either party may be compelled to make discovery, as pro- 
vided by Section 380 of the Code. 



RULES OF PRACTICE FOR CIRCUIT COURTS. lxxxiii 

'~~' ' A. r>. iwM. 



RULE .\MV. • — ^ 

Tho m()viii,t( papers. u\)nu the applioation for such discovery, Moving papf-ra. 
sliiill state the facts and circuni-staiices (tii wliich the same is"* '" '''' 
chiimed, and shall he verified hy athdavit stating that the books, 
papers and documents whereof discovery is sought are not in 
the possession nor under the control of the party a])plying there- 
for. The party applying shall show to the satisfaction of the 
Court or Judge the materiality and necessity of the discoveiy 
sought and the particular iiiforuiation which he rc'juires. 

RULE XLX. 

Discovery may be compelled l)y requiring the party to produce onierfor dis- 
and deposit the matters to be discovered with the Clerk for the *^"**^''^' 
County in which the trial is to be had, or by requiring him to 
deliver sworn copies thereof to the moving party, or in such 
other manner as may be directed by the Court. The order 
therefor shall specify the mode of making the discovery and the 
time within which it is to be made ; and when papers are required 
to be deposited the order shall specify the time that the deposit 
shall continne. 

RULE XLVI. 

The order directing the discovery of books, papers or docu- onier fordis- 
ments shall operate as a stay of all other proceedings in the cause au? as a stay of 
until such order shall have been complied with or vacated, and p'^'-'*' '^' 
the party obtaining such order after the same is complied with 
or vacated shall have the time to prepare his complaint, answer, 
reply or demurrer to which he was entitled at the making of the 
order ; but the Judge in granting the order may limit its effect 
by declaring how far it shall operate as a stay of proceedings. 

RULE XLVI I. 

NEW TRIAL AXn APPEALS. 

Whenever it shall be intended to move the Circuit Court for a s^.ttiinR cases, 
now trial (exee[)t for irregularity, surjirise, or on the minutes of ^"^^'^^ ".'^"^J 
the Judge,) in an action tried by a jury, a case or excei)tions, or 
• ase containing exceptions, as may be proper and the party may 
elect, shall be prepared by the party intending t(» make the 
motion or to review the trial, and a copy thereof shall be served 
on the o])])osite })arty within ten days after trial if by a jury, or 



Lxxxiv IIULES OF PRACTICE FOR CIRCUIT COURTS. 

A. D. IKW. 

"" ^^ ' within ten days after written notice of the filing of the decision 
if the trial bo by referees ; and the party served niiiy, within ten 
day.s thereafter, propose amendments thereto and serve a copy 
on the i)arty proposing the case or exceptions, who may then, 
within four days thereafter, serve the opposite party with a 
notice that the case or exceptions, with the proposed amend- 
ments, will be submitted at a time and place to be specified in 
the notice to the Judge or Referee before whom the cause was 
tried for settlement. The Judge or Referee shall thereupon cor- 
rect and settle the case as he shall deem to consist with the • 
truth of the facts. The time for settling the case must be speci- 
fied in the notice, and it shall not be less than four, nor more 
than twenty, days after service of such notice. The lines of 
the case shall be so numbered that each copy shall correspond. 
Cases reserved for argument, and special verdicts, shall be set- 
tled in the same manner. 

RULE XLVIIL 

Exceptions, Exceptions shall only contain so much of the evidence as may 

rmend^men\'si '^^ necessary to present the questions of law upon which the same 

bowtobemark- -y^ere taken on the trial ; and it shall be the duty of the Judge 

upon settlement to strike out all the evidence and other matters 

not necessarily inserted. 

Whenever amendments to a case or exceptions are proposed, 
the party proposing such case or exceptions shall, before submit- 
ting the same to the Judge for settlement, mark upon the sev- 
eral amendments his proposed allowance or disallowance thereof. 

RULE XLL\. 

Case and ex- Where a party makes a case and exceptions, he shall procure 
filed In" oflice of the Same to be filed in the office of the Clerk of the Circuit 
circuit Court; Court within ten days after such "case" has been settled or 
and how order agreed upon ; and upon failure so to do, the respondent may, 
poai abandoned by notice in writing, require the filing of such case and excep- 
may be obtained ^-^^g within ten days after the service of such notice; and if 
the same are not so filed within said ten days the appellant shall 
be deemed to have abandoned the appeal ; and on satisfactx»ry proof 
that the case and exceptions have not been filed within the time 
required by such notice in the office of the said Clerk the 
respondent shall be entitled to an order of the Supreme Court 
(if the appeal has been perfected) or (if not) to an order of the 
Circuit Court declaring the appeal abandoned, and the respond- 
ent may proceed as if no notice of appeal had been given. 



RULES OF PRACTICE FOR CIRCUIT COURTS. lxxxv 

. A. I). iHfll. 

RULE r.. ' — ■ — 

In eveiT lilM"^'"^ '" ''i^' Supivinc ('mii't from niafter appealable, MofU- of pr<> 
.11- 1 II • 1 - » tL -ii paring a case on 

the :ii)p('ll!int, or MIS attorney, shall, witliin ten (lays after written hpik-uI. 

notice of tlie tiling of sueh matter ap{)e.alable, (;r, if filed within 
term time, within ten days after the rising of the Circuit Court, 
give written notice to the oj)i)osite party, or his attorney, of his 
intention to appeal therefrom, and witliin thirty (."50) days after 
such notice the appellant, or his attorney, shall prepare a case or 
exceptions, or a case containing exceptions (which exceptions 
shall have been taken and served within the time prescribed by 
law), and serve them on the opposite party, or his attorney, or 
within such further time as, upon ten (10) days' notice to the 
o[)p()sito party, or his attorney, the Judge who tried the cause 
may for good cause grant. But should the parties, within the 
times above named, be unable to agree upon a case, then the 
})roposed case, with the proposed amendments and allowances 
and disallowances, shall be, within ten days after failing to agree, 
referred for settlement to the Circuit Judge who heard the cause, 
who shall settle the same within the time and in the manner pro- 
vided for settling a case in Rule XLYII. 

The parties, if they agree on a case, or the Circuit Judge who 
may settle the same, must see that the case shall, as to the matter 
it contains, conform to the requirements of the Rules of the 
.Supreme Court in regard to the form and substance of a case for 
hearing before that Court 

RULE LL 

If the party shall omit to make a case, or exceptions, or state- case, now 
ment of facts, within the times above limited, he shall be deemed wha\ ^deemed 
to have waived his right thereto ; and when the same is made, settled, 
and the parties shall omit, within the several times above limited, 
the one party to propose amendments, and the other to notify 
an api)earanee before the JudgL', Master or Referee, they shall 
respectively be deemed, the former to have agreed to the case as 
])roposed, and the latter to have agreed to the amendments as 
l)roposed. 

RULE Lll. 

If in an action to foreclose a mortgage the defendant fails to in„ an notion 
answer within the time allowed for that |)urpose, or the right of f^'7J^1.'["'!;''e 
the plaintitT as stated in the complaint is ailmittcd by the ">"''*«»8^'- 
answer, the plaintiff may have an order referring it to the Master, 
Clerk, or some suitable person as Referee, to compute the amount 



Lxxxvi KULES OF PRACTICE FOR CIRCUIT COURTS. 

A. D. 181*4. 



"■"■^ V -^ due to tlie pliiintifT, and to suoli of tlie defendtmta as are prior 
incunil)rinicers of the mortgaged premises, and t<j examine and 
report wliether tlie mortgaged premises can be sold in })arcels, 
if the whole amount secured by the mortgage has not become 
due. If the defendant is an infant, and has put in a general 
answer by his guardian, or if any of the defendants are absentees, 
the order of reference shall also direct the person to whom it is 
referred to take proof of the facts and circumstances stated in 
the complaint, and to examine the jilaintiff or his agent, on oath, 
as to any payments which have been made, and to compute the 
amount due on the mortgage, preparatory to the application for 
judgment of foreclosure aud sale. 

The plaintiff in such case, when he moves for judgment, must 
show, by affidavit or otherwise, whether any of the defendants 
who have not appeared are absentees ; and, if so, he must pro- 
duce the report as to the proof of the facts and circumstances 
stated in the complaint, and of the examination of the plaintiff, 
or his agent, on oath, as to any payments which have been made. 
And in all foreclosure cases the plaintiff when he moves for 
judgment must show by afiidaAit, or by the certificate of the Clerk 
for the County in which the mortgaged premises are situated, 
that a notice of the pendency of the action containing the names 
of the parties thereto, the object of the action, and a description 
of the property in that County affected thereby, the date of the 
mortgage, and the time and place of recording the same, has 
been filed at least twenty days before such application for judg- 
ment, and at or after the time of filing the complaint, as required 
by Section 153 of the Code of Procedure. 

RULE LIII. 

judgmeut for Unless otherwise specially ordered by the Court, the judgment 
^gt'd'premises- s^i^ll direct that the mortgaged premises, or so much thereof as 
whattocx)ntain. jjjg^y ^g sufficient to raise the amount due to the plaintiff for 
principal, interest and costs, and which may be sold separately 
without material injury to the parties interested, be sold by or 
under the direction of the Sheriff of the County or the Clerk or 
Master, and that the plaintiff or any other party may become a 
purchaser on such sale ; that the officer making the sale execute 
a deed to the purchaser ; that out of the proc£»ecls of the sale ho 
pay to the plaintiff or his attorney the amount of his debt, 
interests and costs, or so much as the purchase money will pay of 
the same, and that he take the receipt of the plaintiff or his 
attorney for the amount so paid and file the same with his report 



RULES OF PRACTICE FOR CIRCUIT COURTS. 




of sale; and that the purchaser at such sale be let into possession 
of the premises on jiroduction of the deed. 

All surplus moneys arisin<( from the sale of mort^aj^od jjre- 
mises under any judgment shall be paid or deposited l)y the 
Sheriff or other otKcer making the rule, within five days after the 
same shall be received, in the manner iirtjvided by law for the 
securing of moneys in the custody of this Court. 

RULE LIV. 

On filing the report of the sale, any party to the action, or any claims for sur- 
person who had a lien on the mortgaged premises at the time of '*'"" ™°°*'^- 
the sale, upon filing with the Clerk where the report of sale is filed 
a notice stating that he is entitled to such surplus money or some 
l)art thereof, and the nature and extent of his claim, may have an 
order of refeiljnce to ascertain and report the amount due to him 
or to any other person which is a lien upon such surplus moneys 
and to ascertain the priorities of the several liens thereon ; to the 
end that on the coming in and confirmation of the report on 
such reference such further order may be made for the distribu- 
tion of such surplus moneys as may be just. Every party who 
appeared in the cause, or who shall have filed such notice with 
tiie Clerk previous to the entry of the order of reference, shall 
be entitled to service of a notice of the application for the order 
of reference and to attend on such reference and to the usual 
notices of subsequent proceedings relative to such surplus. But 
if such claimant has not appeared or made his claim by an attor- 
ney of this Court, the notice may be served by putting the same 
into the postoffice directed to the claimant at his place of resi- 
dence, as stated in the notice of his claim. 

RULE LV. 

Xo partition of real estate of a deceased person shall be had ncquisiti-s for 
unless the legal representative or representatives of such deceased onierVr punu 
person be made parties to the action and it be made to appear to "*'°' 
the Court that the debts of such deceased person are fully paid, 
or that the personal estate in the hands of the personal represent- 
ative or representatives is sufficient for the payment of the debts 
of such deceased person, or unless in the decree due provision is 
made for the payment of the debts. 

Where several tracts or parcels of land lying in this State are 
owned by the same persons in common, no separate action for 



Lxxxviii EULES OF PRACTICE FOR CIRCUIT COURTS. 

A. D. 18tM. 

"-"^r- — j)artiti(iii of a part thereof only shall be brought without the 
consent of all the parties interested therein ; or if brou<;lit with- 
out such consent the share of the plaintilT may be eharged with 
the whole costs of the proceeding. And when infants are inter- 
ested, it shall be stated whether the parties own any other lands 
in common. 

RULE LVl. 

Reference as Where the rights and interests of the several parties, as stated 
defense Is Inter- in the conipUiiut, are not denied or controverted, if any of the 
^'^^^' defendants are infants, or absentees, or unknown, the plaintiff, 

on an affidavit of the fact, and notice to such of the parties as 
have appeared, may apply for an order of reference, to take 
l)roof of the plaintiff's title and interest in the premises, and of 
the several matters set forth, and to ascertain an,d report the 
rights and interests of the several ])arties in the ])remises and an 
abstract of the conveyances by which the same are held. 

RULE LVII. 

How questions All questions for argument, and all motions, shall be brought 
tbe'^o'iut.^*'"'^ before the Court on a notice, or by an order to show cause ; and 
if the opposite party shall not appear to oppose, the party mak- 
ing the motion or obtaining the order shall be entitled to the 
rule or judgment moved for on proof of due service of the notice, 
or order, and papers required to be served by him, unless the 
Court shall otherwise direct. 
Order to show Such order to show cause shall only be granted when a special 
granted. ^^^^° reason for a notice, less than four days, appears on the papers 
presented ; and the party shall, in his affidavit, state the present 
condition of the action, and whether at issue. 

And when the motion is for irregularity, the notice or order 

shall specify the irregularity complained of. 

Restraininfr No restraining order pending return to a rule to show cause 

granted.^^*" shall be granted unless it shall be made to appear, by affidavit 

to the satisfaction of the Judge, that irreparable injury is likely 

to result to the moving party in the meantime. 

RULE LVIII. 

Points on In all calendar motions, each party shall briefly state upon his 
^ifisioMonlacts points the leading facts which he deems established, with a refer- 
ence to their folios where the evidence of such facts may be 
found ; and the Court will not hear an extended discussion on a 
mere question of fact. 



UL'LES OF I'KACTIL'E I'Uii CllX'UJT CULliT.S. Lxxxix 

[ A. D. IMOl. 

RULE 1.1 X. ■ ^ 

OPENING AND KKI'LY. 

On all rules to show cause, where a party failiuj^ to auKwer Anrument and 
would ix> in contempt, tlie ])arty culled on shall hc.^iti and end 
his cause ; and on all motions or s])ccial matters, either spring- 
ing out of a cause or otherwise, the actor or party submitting the 
same to the Court shall in like manner begin and close ; and 
so shall the defendant, where he admits the plaintiff's cause by 
the pleadings, and takes upon himself the burthen of proof, have 
the like privilege. 

The party having the opening in an argument shall disclose his 
entire case ; and on his closing shall be confined strictly to a 
reply to the points made and the authorities cited by the opposite 
party. 

RULE LX. 

MISCELLANEOUS. 

"Where a party has suffered a nonsuit, or discontinuance, or coeta of former 
has otherwise let fall his action, all proceedings in any new action 
for tlie same cause shall be suspended until the costs of such 
former action have been paid. 

RCLE LXI. 

If any application for an order be made to any Judge and such sia^equent ai^ 
order be refused in whole or in part, or be granted conditionally S'e r'u'fter'Ve- 
or on terms, no subsequent application upon the same state of '"^'' 
facts shall be made to any other Judge ; and if upon such subse- 
(|uent application any order be made it shall be revoked ; and in 
the affidavit for such order the party or his attorney shall state 
whether any previous application for such order has been made. 

RULE LXIL 

In the Court of General Sessions, the defendant, after verdict Affl.iavit m 
against him, shall not be permitted to submit any affidavit to the snblSued.' ''"" 
Court which goes to deny matters of fact, but he may submit 
affidavits as to matters in extenuation or mitigation : Provided, 
They are filed so as to allow the Attorney-Oeneral or Solicitor a 
reasonable time to answer them. 




RULES OF PRACTICE FOR CIRCUIT COURTS. 



RULE LXIIL 

Tiiuoforcom- 111 ull cascs where Ji motion sliall l)e p:rantecl on pavnient of 
plyiuff with . ., . . ,. . 1 'i 1 

orders. costs or Oil tlie periorniauce of any condition, or wliere- the order 

shall require such payment or performance, the party whose duty 

it shall be to comply therewith shall have twenty days for that 

purpose unless otherwise directed in^ the order; but where costs 

to be adjusted are to be paid the party shall have fifteen days to 

comply with the order after the costs shall have been adjusted by 

the Clerk on notice unless otherwise ordered. 

RULE LXIV. 

Orders on peti- Orders granted on petitions or relating thereto shall refer to 
such jietitions by the name and description of the petitioners, 
and the date of the petitions if the same be dated, without recit- 
ing or setting forth the tenor or substance thereof unnecessarily. 
Any order or judgment directing the payment of money, or affect- 
ing the title to property, if founded on petition, where no eom- 
plaii>t is filed, may, at the request of any party interested, be 
enrolled and docketed as other judgments. 

RULE LXV. 

Order to stay Xo order to stay a sale under a judgment in partition, or for 
obt^ed.' °^ the foreclosure of a mortgage, shall be granted or made by a 
Judge out of Court except upon notice of at least four days to 
the plaintiff or his attorney. 

Undertaking No order to stay a sale under execution shall be granted with- 
out requiring a written undertaking, with sureties, from the 
moving party to the effect that he will pay to the adverse party 
such damages, not exceeding an amount to be fixed by the order 
and specified in the undertaking, as he may sustain by reason of 
the injunction, if the Court shall finally decide that he was not 
entitled thereto. Such damages may be ascertained by a refer- 
ence or otherwise as the Court shall direct. 

RULE LXVI. 

SURETIES. 

Sureties to Whenever a Justice or other ofliicer approves of the security to 
justify. be given in any case or reports upon its sufficiency it shall be his 

duty to require personal sureties to justify. And all bonds and 
undertakings shall be duly proved by a subscribing Avitness, or 
acknowledged in like manner as deeds of real estate, before the 
same shall be received or filed. 



RULES OF rUACTiCE EUU CiUCLl'L' L'UL'1{TJ5. xci 

' A. D. IfjW. 

RULE LXVir. " ' ' 

Wherever sureties are required to justify they shall justify where uie 
within the County where the defendant shall have been arrested, sWe. *^ " " 
or where the sureties reside. 

RULE LXVIIL 

FILING PAl'EKS. 

Papers shall be (ilcd in the County specified in the complaint where papers 
as the iilace of trial, or in the County to which the place of trial 
has been changed. And in case the place of trial is changed for 
the reason that the proper County is not specified, papers on file 
at the time of the order making such change shall be transferred 
to the County specified in such order ; and all other papers in 
the cause shall be filed in the County so specified. 

RULE LXIX. 

It shall be the duty of the plaintiff's attorney forthwith to file what papers to 
with the Clerk for the proper County all undertakings given when. ' "° 
upon procuring an order of arrest, an injunction order or an 
attachment, with the approval of the Judge or officer taking the 
same endorsed thereon ; and in case such undertaking shall not 
be filed within ten days after the order for arrest, of injunction 
or attachment has been granted the defendant shall be at liberty 
to move the Court to vacate the proceedings for irregularity, with 
costs, as if no undertaking had been given. It shall also be the 
duty of the attorney to file, within the same time and under the 
like penalty, the affidavits upon which an injunction or attach- 
ment has been granted, and also the affidavit upon which an 
order for the service of a summons by publication or an order 
for a sul)stituted service of a summons has been granted, together 
with the order for such service. 

RULE LXX. 

RECEIVERS. 

Every receiver of the property and effects of the debtor shall, powers of re- 
unless restricted by the special order of the Court, have general or's wtat«. * '' 
power and authority to sue for and collect all the debts, demands 
and rents belonging to such debtor, and to compromise and 
settle such as are unsafe and of a doubtful character. lie may 
also sue in the name of a debtor where it is necessary or proper 
for him to do so. 



xcii RULES OF PRACTICE FOR CIRCUIT COURTS. 

A. D. 18M. ' 

• ' RULE LXXL 

for Xo action for malicious prosecution based upon an indictment 
had tried by the Court of .Sessions shall be commenced unless a copy 
: : f uie^udKc of the indictment has been first obtained by order of the Judge 
indictment. ^ before whom the case was tried. 

RULE LXXII. 

Damages on After a judgment has been recovered on an official bond it 
blJ^*^ recovered! shall Stand as a security for any former or subsequent breach of 
it, and any one who may conceive himself aggrieved by the mis- 
conduct of the officer shall have a right to come in and suggest 
the breach of the bond of which he complains and pray execution 
for his damages ; and upon serving a twent3'-day rule upon such 
officer and his sureties, or such of them as judgment has been 
rendered against in the first action, requiring them to plead to 
the suggestion, shall in default of such plea, or upon issue joined, 
have his damages assessed by the verdict of a jur}- and have exe- 
cution for the penalty to enforce the payment of the damages 
assessed. 

RULE LXXIII. 

Mottonforar- If a motion in arrest of judgment or for a new trial in a crim- 
rn^nt:^ whS inal case be intended to be made, the party shall give notice 
'"****■ thereof and of his grounds within two days after verdict. 

Xo motion in arrest of judgment shall be heard after a motion 
for a new trial, but the motion in arrest of judgment and for a 
new trial may, in the first instance, be made simultaneously. 

RULE LXXIV. 

AU former All Rules heretofore adopted for the government of the prac- 
Ruies repealed. ^-^^ ^^ ^-^^ Circuit Courts of this State shall be, and they are 
hereby, repealed. In cases where no provision is made by Stat- 
ute or by these Rules the proceedings shall be according to the 
practice as it has heretofore existed in the Courts of Law and 
Equity of this State in cases not provided for by Statute or the 
written Rules of the Court. 



By resolution of the General Convention of the Justices of the 
Supreme Court and the Judges of the Circuit Courts these Rules 
are of force on and after the first day of April, 1804. 

Attest: ALBERT M. BOOZER, 

December 20th, 1893. Clerk of the Convention. 



PART IV., 



(ONIAINING TIIK 



.' /' \ I |l|>(W'l,'lll|l|.' 



CIVIL I 



J \ M \ I T I li I ill '\ LI / I H iJj 



AND 



PART v., 



CONTAINING THE 



CI!I)IL\AL STATUTE LAWS 

01^ TllH STATE, 

J^S K,EAriSEID Ilsr 1893. 



VOL. 2. 



cohmiua, s. ('. 

(•iiai:li:.s a. calvo, .jr., staii: I'i;inti:i;. 

1894. 



TABLE OF (lONTENTS. 

l»^Lt1' IV. 



PAGE. 

I'll A VTEii I. —The Code of Procedure 1 



COURTS OF JUSTICE AND THEIR JURISDICTION. 

TITLE I. 

Courts of Justice. 

Chaptek 1. — Their designation 3 

TITLE II. 
.Supreme Court 4 

TITLE in. 

Cin'uit (!<)urts 10 

TITLE IV. 

i'rohale Court --.'U 

TITLE V. 
(/ourts of Trial .Justices 31 



IV 

CIVIL ACTKlVS. 



'IMTLK I. 

I'AGK. 

Form of Civil Actions 43 

'VVV\jK II. 

TlMK OK C0MMENCIX(J CiVIL AcTloNS. 

CiiAiTKK I. — At'tioiis (ioiicrally 44 

Chapter II. — For the Kecovory of I\cal Property 45 

Chapter III. — Other than for the Recovery of Heal Property. . . 50 

Chapter IV. — General Provisions 52 

TITLE III. 

Parties to Civil Actions 55 

TITLE IV. 

Of tiie Place of Trial of Civil Actions G2 

TITLE V. 

Manner of Commencing Civil Actions 64 

TITLE VI. 

Of the Pleadings in Civil Actions. 

Chapter I. — The Complaint 72 

Chapter IL — The Demurrer ?.'3 

Chapter III. — The Answer 7(5 

Chapter IV.— The Reply TO 

Chapter V. — General Rules of IMeadings 80 

Chapter VI. — Mistakes and Amendments 8(» 

TITLE VII. 
Of the Provisional Remedies in Civil Actions. 

Chapter 1. — Arrest and Bail 02 

Chapter II. — Claim and Delivery of Personal Property OS 

Chapter III. — Injunction 101 

Chapter IV. — Attachment 1 03 

Chapter V. — Provisional Remedies 112 



V 

T\'V\A-: \III. 

I'AOK. 

Oi" iiii: 'I'lMAi. AM) .Iri)(;.M i:ni' in Civii, Afintss. 

CllAi'TKU I. — .Iiulgmont U\nm Iniiliirc to iViiswcr, &c 11;") 

Chaptku 11. — Issues and the Mode ol" Trial 117 

Chai'TKU 1 1 1.— Trial hy .Tury T-^--.' 

("irAi'TKU I\'. — Trial l)y Court I;i5 

(JiiAi'TKR y. — Trial hy Ruferees I'iT 

CiiArriiu VI. — Manner of Enterin<i^ Judgment i:!l 

TITLE IX. 
Of tiik Execution of the JuDfiMEXT ix (!ivil Ac-tions. 

Chapter 1. — The Execution l.'U 

Chaptei{ II. — Proceedings Huppli'iiieiitai-y to the Ivxccutioii . . . . 140 

TITLE X. 

Of the Costs ill Civil Actions 140 

TITLE XI. 
Of Appeals in Civil Actions. 

Chaptei{ T. — Appeals in General 1 .")() 

Chapter II. — Appeals to the Supreme Conrt 15"^ 

Chapter III. — Ap])eals to the Circuit Court from an Inferior 

Court l';ii 

TITLE XII. 

Of the Miscellaneous Proceedings in Civil Actions, 
AND General Provisions. 

Chapter I. — Submitting a Controversy without Action 1(!7 

Chapter II. — Proceedings Against Joint Debtors ItiS 

Chapter III. — Confession of Judgment without Action ic>!t 

Chapter IV. — Oifer of the Defendant to Compromise the 

Whole or a Part of the Action 171 

Chapter V. — Admission or Inspection of Writings 172 

Chapter VI. — Examination of Parties 173 

Chai*ter VII. — Examination of Witnesses 175 

Chai»ter VIII. — Motions and Orders 170 

Chaiter IX. — Entitling Attidavits IS- 

Chapter X. — Computation of Time 18'-i 

Chapter XI. — Notices and Filing and Serving of Papers IS-^* 

Chapter XII. — Miscellaneous Provisions iJ^-i 



n 

TITLE XIII. 

I'A(;k. 
Actions in Particular Cases. 

Chapter I. — Actions against P'oreign Corporations 18.') 

CiiAPTKR II. — Actions in Place of Scire Facias, Quo Warraufo, 
and of Informations in the Nature of Quo 
Warranti) 1 sfj 

TITLE XIV. 
General Provisions ; 11)2 



THE 



CODE OFCIVILI'ltOCI' 1)1 



Uj. 



CHAPTER 1. 

The Code of Procedure. 



SEC. 

1. Division of remedips. 
•~. D(Mlnltlon of an action. 
'■i. Dciliiitloii of a special proceeding. 
I. Divisions of actions into civil and crimi- 
nal. 



Sec. 
5. 
G. 



Dellnition of a criminal action. 

Definition of a civil action. 

Civil and criminal remedies not merged 

in each other. 

Division of the Code of Procedure. 



Section 1. Remedies in the Courts of justice are divided Division of 
into : 1. Actions. 2. Special proceedings. "i87o" 'xTv7 

The General Statutes and the amended Code having been adopted at the ' * 
same time, they must be regarded as one Act and construed together. — Fooshe 
V. Mcrriwcfher, 20 S. C, 337 ; City Council v. Weller, 'M S. C, ;i57. 

The Code does not change the practice in actions, except as to the pleading 
and its incidents.— Fd'cp v. Broivn, 4 S. C, 144. It has abolished distinctions 
in forms, but not between cau.ses of action. — McConnell v. Kennedy, 29 S. C, 
180. 

Sec. 2. An action is an ordinary proceeding in a Court of jus- n.iinition o f 

tice, by wliicli a party prosecutes another party for the enforce- j ^. 92! 

ment or protection of a riglit, the redress or prevention of a 

wroii*;, or the punishment of a public offense. 

There is no cause of action under the Code, which did not maintain an 
actiim at law or a bill in eijuity, before its adoptiim. — Southrrn Porcrlnin Co. 
V. 77i('ir, 5 S. C, 5. Under the Code equitable relief maj' be enforced in an 
action which seeks relief formerly obtainable only in a Cburt of law. — Parkir 
V. Jacobs, 14 S. C, 112. Attachment being a form of process incident to an 
action, is embraced in the term "action"; is not a special proceeding. — Ca)nj>- 
lirll V. Home In. Co., 1 S. C, ITjK ; Allen v. Partlou; '.I S. C, 417. Api)t>al from 
Probatt^ C'ourt to Circuit Court upon the merits is an action, not a special pro- 
ce(!diiig. — Ilrndi'r.snn v. Hytttf, IS S. C, 11-. 

Sec. 3. JBvery other remedy is a special [jroceoding. Dennition of a 

s|>eoinl prootHHl- 
Knlc against Sheriff for official misconduct is a special proceiHling. — Emory ing. 

V. Doris, 4 S. C, 'Si. Att^ichmeiit of crop under lien is a special i)roceeding. — //*., 8 3. 

Johnntonc v. Munigaull, V'> S. C, 40(1. 




CODE OF en II. I'UOCKDrHE 



Sec. 4. Actions arc ol' two kinds : 1. Civil. •.'. Ciiiiiiiial. 
tioiLs Into rivii Sec. 0. A cniHinal action is |nosccutc(l liy the State, as u 

ji^ g, party, against a person charged witli a piililic oficnsc. for the 

iKiiiiit(.)n..f II pnnishnient thereof. 

,,, jr, Sec. 6. Kvcry oilier is a civil action. 

Ut'Uuith.n of u Sec. 7. ^^ liere the violation of a right athnits of both a civil 
111., 80. "^ '^"^^ criminal remedy, the right to prosecute the one is not merged 

Civil and in the other, 
tiiw not inerKwi Scc. 8. 1 his Codc of l^roccdure IS divided into two I'arts : 

jb., 87. — '~ the first relates to Courts of justice and their jurisdiction ; the 
Division of the second rolatcs to civil action in the Courts of this State. 

(■(kIo of Proce- 
dure. Tlie second part of ( 'ode, ji.s to appeals, dwH uot apply to apjx'als in crinunal 

Ib.fiS. cases ; they are governed by tbe old practice Ix'fore the Code. — State v. Pitta, 

12 S. C, 180. It applies only to Court of Common Plejus, except where exi)refi8 
reference is made to inferior Conrts.— />(i/i/ v. Dunill. l'.« S. C, 14:^. 



PART I. 



COUllTS Ol-^ JUSTICE AND TIIEIII JUIMSDIC- 

TION. 



TITLE I. 

COURTS OF JUSTICE. 

CHAPTER I. 
Their Designation. 

SKC. I SKf. 

9. The several Courts of this state. I 10. Their jurisdiction generally. 

Section 9. The following [ire the Courts of Justice in this The several 
vi... *.„ . Courts of this 
'^^'^^^ • State. 

1. The Court for Trial of Impeachments. i87o,xiv.,99; 

^ ^ ^ Con., Art. IV., 

2. The Supreme Court. §i. 

3. Two Circuit Courts, to wit : 1. A Court of Common Pleas ; 
and 2. A Court of General Sessions. 

4. Probate Courts. 

."). Courts of Justices of the Peace. 
(J. Courts of Trial Justices. 

7. The City Court of Charleston. 

8. Court for the Ar])itration of Mercantile Disputes in the 
city of Charleston. 

0. Mayors' and Municipal Courts. 

Sec. 10. These Courts shall exercise the jurisdiction now Their juris- 
vcstcd in them respectively, except as otherwise prescribed by uily."" ^^^^' 
this Code of ]»roceduiv or the laws of the State. i870, xiv;,Tio: 




CODE OF CIVIL I'K0CP:I)UHK 

TITLE II. 

SUPRExMK COIKT. 



SKC. 

11. Its juritMilctlon. 

12. Power of Court. 



8KC. 

14. Jiirlfnncint ; rehearlnR. Opinions. 

IT), .siicrltis t<) provide rooms, Xf. 



13. Terms. I'refereneo of causes. | 1<>. Court8, where held. Adjournment. 

Its Jurisdiction. Sectioilll. The Su})renie Court shall have exclusive juris- 
1873, .\v..4!i5,?i ji^^.^^i,,n |,, poview, upoii appoal : 

1. Auy iuterinediate judt^ment, order, or decree, involving 
the merits in actions eonimenced in the Courts of Common Pleas 
and General Sessions, brought there by original process, or 
removed there from any inferior Courts or jurisdiction, and final 
judgments in such actions : Provided, If no apjDcal be taken 
until final judgment is entered, the Court may, upon appeal from 
such final judgment, review any intermediate order or decree 
necessarily affecting the judgment not before appealed from. 

An order to involve the merits must finally determine some substantial right 
in the case. — Henderson v. Hyatt, S S. C, 112 ; Blakehj v. Frazier, 11 S. C. 
122. 

The terms " involving the merits ' and " necessarily affecting the judgment ' 
are equivalent. — Blakely v. Frazier, 11 S. C, 122. 

What orders involve the merits and are so reviewable before judgment :— 

An order setting aside verdict for plaintiff' without notice to him. — Williams 
V. Charleston, 7 S. C, 71. 

An order refusing to change place of trial to County where defendant re- 
sides. — Blakely v. Frazier, 11 S. C, 122. 

An order refusing an oral demurrer. — Elliott v. Pullitzer, 24 S. C, SG ; 
McCown V. McSween, 2!» S. C, 1:^1. 

An order refusing to allow amendment, upon legal gronnds.—Siblej/ v. Ymam, 
2(5 S. C, 415. 

An order of reference that deprives party of motle of trial which the law 
allows him. — Feryusoyi v. Harrison, 'M S. C, l(i9. 

Orders that are based upon error in law and will prejudice trial.— /)'<//iA- v. 
Stelling, o2 S. C, 102 ; Sease v. Dohson, .'A S. C, M'^ : Capell v. Moses, :« S. C, 
559. 

An appeal from an intermediate order, leaving unaffected a former order, is 
conclusive of appeal from former order. — Printjle v. Sizer, 7 S. C, 181. 

What orders do not involve the merits and are not so reviewable before 
judgment :— 

An order requiring security for costs or nonsuit, and an order discharging 
Clerk on rule for refusing to enter judgment, and reinstating the case.— 
McMillan v. McCall, 2 S. C, :W0. 

Orders on motions to dissolve attachment. — Alleu v. Palton. '^ S. C, 4is ; 
Clausen v. Easterlinf/, lit S. C, 51(t. 

An order of Circuit Court allowing appeal, which had been denied by Pro- 
bate Court, as it merely affects form of procedure. — Hcnrfer-son v. Hyatt, 8 S. 
C, 112. 

An order refusing nonsuit. — Arpiew v. Adams. 24 S. C, 8(1. 



I 



k 



OF SOUTH CAROLINA. 

A. I*. I MM. 

f h-ders an to rt^cominitting caae to refereo iK-inf? discretionary.— Westjirld v. *>— — y— — ' 
W't'stfit'ltl, I'.i S. C, -kS2 ; Wdtkin.s v. Lnntj, 17 S. C, Vi; Sj/nimes V. Symmrn, 
IS S. C, «M)1 ; Lowndps v. jl/j7/pr, 2.''. S. C, !!!» ; .9»nt«A v. Thomanon, 2i> S. C, 
ti()7 ; Hubbard v. Camprrdoivn. 2<5 S. C, 581. 

An interlocutory order of injunction, "without prejudice."— Oar/tngrfou v. 
< 'Of inland, St S. C, 41. 

Ordc'i-s on motions for continuance.— S^a/f v. Dodson, 1<» S. C.,459; Craw- 
ford V. Schmidt, l(i S. C, 1534 ; Symmes v. Symmes, l« S. C, «)1 ; Garvin v. 
'.■arnin, 21 S. C, 02 : Douthit v. Westfield, 22 S. C, 58S ; Sawyer v. .SVnn, 27 S. 
( ■., 2.51 : 5f«f(' V. Atkinson, :K S. C, 100 ; Statr v. IFwr, :W S. C, r>H2. 

An order referring it to Master to take testimony as to claims in case. — Fal- 
,,1,'tto Co. V. Ristfy, 2.5 S. C, IM) ; Jones v. Trumbo, 2t» S. C, 20. 

An order refusing motion to submit issues of fact to a jury in equity ca.se. — 
Dupnnt V. DuBos, m S. C, ;M>. 

Wliat orders reviewable on appeal from final judgment : — 

An order sustaining a demun-er to comjjlaint, with leave to amend on paj-- 
ment of costs. — Cureton v. Hutchison, '.i S. C, (KK). 

Order ovemiling demurrers.— 3fo?>/ei/ v. Cureton, (» S. C, .5.5. 

All material ladings and charges of Cii-cuit Judge excepted to.— Brice v. 
Hamilton, 12 S. C, :i5. 

An order denying the right to open and reply.— J^ewneW v. Sandifer, 1.5 S. 
('.,418. 

An order requiring referee's report to be printed for Circuit Court.— Scoff v. 
Alrxand<'r,27 S.C.,1^. 

The Supreme Court is not restricted to such review of only such orders as 
have been appealed from within ten days and the cases for appeal thereon 
made up within thirty days : but it may review any orders affecting the final 
judgment, whether appealed from or not.— Hyatt v. McBurney, 17 S. C, 1.50 ; 
Uc v. Fowler, 111 S. C, mi ; Thatcher v. Ma.-isey, 20 S. C, .547 ; Bomar v. R. 
A'. Co., :iO S. C, .50 ; Snlliran v. Latimer, 32 S. C, '2M ; McCrady v. Jones, 30 
S. C, i:^; ; Wallace v. R. R. Co., 30 S. C, 597. And such review includes all 
ruliufcs and charges material to the judgment, though no motion for new trial 
wa.s made to Circuit Court. — Brice v. Hamilton, 12 S. C, 32. 

And upon appeal from a final judgment, rendered after appeal from an in- 
r.-rmediate order by one party, the other party may review such order. — 
Hyatt V. McBurney, 17 S. C, 143. 

Is a decree which allows judgment for foreclosure "as soon as the amount 
is ascertained ■' such reviewable intermediate order i— Wallace v. Carter, 32 S. 
('.,314. 

The better practice is to await appeal from final order and then review in- 
t«;rme(liate orders. — Capell v. Aloses, 3(» S. C, •5.5'.t. 

What orders not so reviewable : — 

An order of inferior Court not final nor involving the merits.— ^1/c 117// lam 
V. McCall, 2 S. C, 393 ; Donaldsonv. Bank, 4 S. C, 114. 

Final judgments : — 

The decision disposing of all the issues and directing judgment for amount, 
with interest, to be calculate<l by the Clerk, is a final judgment. — Adirkcs v. 
.Mli.son, 21 S. C, 245. In iic-tion at law, decision of Judge is not the final judg- 
ment.— /<>. 

The decision of two Trial Justices upon habeas corjms proceedings iK'fore 
them is not apiiealable to Supreme Court but to Circuit Coxurt.— State v. Dnn- 
cun, 22 8. C, H8. 

Thi.s sulnlivision may not allow Supreme C<jm-t to hear appeal from City 
Court of Charleston.— CiVy. Com n<'i7 v. Wellcr. .'M S. C. 357. 



CODE OF Civil. PROCEDUHE 



A. I). IWM. 



ei 



•^^-^ 2. All Older alTc'ctiM'' ii substantial right made iii an action, 

1870, XIV., 611 ; , , 1 • X- X 1 . • .1 .• 1 

iKTM. XV., 4115, when siicli order in eirect deternnnes the action, and prevents a 
jiid<^inent from which an api)eal niiglit be taken, or discontinues 
the action, and wlien such order <(rants or refuses a new trial ; 
or when such order strikes out an answer, or any part thereof, 
or any pleadintr in an action. Upon every appeal from an order 
t;rantin<]f a new dial, on a case made or on exceptions taken, if 
the Supreme C!ourt shall determine tliat no error was committed 
in granting the new trial, it shall render judgment absolute upon 
the right of the appellant ; and after the proceedings are remit- 
ted to the Court from which the appeal was taken, an assessment 
of damages or other proceedings, to render the judgment effect- 
ual, may be then and there had in cases where such subsequent 
proceedings are requisite. 

What orders are appealable uuder this subdivision : — 

An order refusing leave to defendant to file his answer and friviiij^ judf^nent 
by default against hini. — Ayvr v. Chassereau, 18 S. C, 597. 

Orders refusing nonsuit and, after verdict, a new trial. — Moore v. Sniitli, 24 
S. C, 31'.>. 

Doubted whether an order concerning security for costs is, unless it termi- 
nate action by nonsuit. — Johnson v. Cobb, 2'.i S. C, :^72. 

An order granting or refusing new trial, where some question of law influ- 
enced the decision. — Byrd v. Small, 2 S. C, 1^88 ; Durant v. Philpol, Hi S. C, 
11(5 ; Boyd v. Mnnro, 82 S. C, 24;». 

Orders as to amendments made upon clearlj' erroneous legal gi'ounds. — Boto- 
den V. Winsmifh, 11 S. C, 411 ; Mason y. Johnson, 18 S. C, 2:^ ; Moore v. John- 
son, 14S. C, 48() : Sibley v. Yoxing, 20 S. C, 415 ; Lilly v. R. Ii., 32 S. C, 142 ; 
Wariny v. Miller, 80 S. C, 810. 

" An order granting a new trial on a case made on exceptions taken" con- 
strued to embrace an order granting a new trial on the minutes. — Caaton v. 
Brock, 14 S. C, 104. 

What orders are not :— 

An order, though it affect substantial right, unless it prevent judgment. — 
Allen V. Partlow, 8 S. C, 417 ; Garlinyfon v. Co^x'/ajirf, 25 S. C, 41. 

An order sustaining demurrer to complaint, with leave to amend on pay- 
ment of costs. — Cureton v. Hutchinson, 8 S. C, <>0<). 

Orders on motion to open default judgment. — Buttz v. Campbell, 15 S. C, 
014 ; Truett v. Rains, 17 S. C, 458. 

An order granting or refusing new trial for error of {act.— Floyd v. Abney, 
1 S. C, 114 ; Elmore v. Scuri-y, 1 S. C, 18!) ; Abrahams v. Kelly, 2 S. C, 2:« ; 
Bijrd V. Small, 2 S. C, 88vS ; Massey v. Adams, 8 S. C, 205 ; W'insmith v. 
Walker, 5 S. U.,478 ; Gibbes v. Elliott, S S. C, 50 ; BHckman v. R. R., S S. C, 
178 ; Clark v. Harper, 8 S. C, 250 ; Bardin v. Drafts, 10 S. C, 4J)8 ; Lanier v. 
Griffin, 11 S. C, 584 ; Steele v. R. R., 11 S. C, 5S<t ; Warren v. Layronc, 12 S. 
C, 40 ; Bank v. Gary, 14 S. C, 572 ; State v. Clark, 15 S. C, 407 ; Donaldson 
V. Ward, 20 S. C, 585 ; Blukehj v. Frazier, 20 S. C, 144 ; Altee v. S. C. Co., 21 
S. C, 55!» ; ^jj.s/i>i v. Broivn, 21 S. C, 5'.K» ; Walker v. R. R., 25 S. C, 141 ; State 
V. Nance, 25 S. C, UW ; Wolfe v. R. R., 25 S. C, 87'.» ; Agnew v. Adam.s, 2<5 S. 
C, 101 ; Glover v. Burbridye, 27 S. C, 805 ; Dial v. Aynew, 28 S. C, 454 : Riygs 
V. Wilson, :50 S. C, 172 ; McCord v. Blackwcll, 31 S. C, 120 : Brown v. Thomp- 
son, 31 S. C, 4:36 ; Canttvell v. Fowler, 32 S. C, SSt* ; Johnston v. Holmes, 82 S. 



OF SOUTH CAROLINA. 



A. D. IH&i. 



» 

1 



C, AM ; Sfiitr v. Whit,; Xi S. ('., .V.» ; Duriiuf v. Duifint, :») H. C, -J!) ; Fi-irk v. 
Wilson, :«; S. ('., (K) ; I'clzcr v. irun, :i»> H. C, iii:! ; .S•^/^■ v. ffninrs, :!r, S. (L, .V)r); 
U'rhhcr V. ^l/j/T>i.s, :}() S. C, 585. 

Order Kiimtiiifj or refiwiuK continuance— .SYr/N- v. Atkinson, '.i2 H. ('., KKl ; 
Stdtr V. Wysr, :W S. V., .Wi. 

(^cni'rally as to this S«H'ti(m : — 

Tho Supri'inc Court luis appfllnti- .jurisdiction in cases of chancery alone ; it 
can correct errors of hiw only in cases at law, and cannot revic^w the facts. — 
Cons., Art. 4, Se<-. 4 ; Sullirtin v. Thomas, :i S. C, 5;il ; Whdiry v. Hank; 5 S. 
('., ^1 ; aihbcs V. Elliott, S S. ('., 50 ; Stafc v. Curdozo, II H. C, ~'22 ; .Joplin\. 
('(irrirr, 11 H. ('.. ."i^il ; Hrirr v. Hamilton, 12 S. C, M ; Mftxnwll v. Thonijison, 
\.> S. ('., (n2; Kappnn v. liyan, 16 S. C, :{58 ; Cowan v. iVcc^, 17 S. C, 5H<» ; 
Crawford v. Crawford, 17 S. C, 5'.i;^ ; Bowen v. /?. /^, 17 S. C, 57!) ; Chapman 
V. Lipscomb, IS S. C, '2'M : Ross v. Lindler, 18 S. C, (>05 ; CauljU-ld v. Charles- 
ton, l'.» S. C, (101 ; ysT.r Partr h'rcd, 19 S. C, (KM ; Blakelij v. Frazicr, 20 S. C, 
14S ; Donaldson v. Tl'drrf, 20 S. C, 5^5 ; Gaffney v. P<'c/cr, 21 S. C, (Mi ; Adit-kcs 
V. liratton, 21 S. C, 257 ; Copeland v. Fownj/, 21 S. C, 287 ; Whitesides v. /i«r- 
ber, 22 S. C, 50 ; Davis v. Schmidt, 22 S. C, i:W ; McMahan v. Dawkins, 22 S. 
C. H22 ; S^of*" V. Co/M?H6m, 17 S. C, 83 ; Nichols v. i?. /?., 2:^ S. C, (K)4; C'«Vrcr^ 
V. Nicklcs, 2(i S. C, :i04 ; Hornsby v. /^. /e., 2(5 S. C, 187 ; 5(a<e v. Prater, 2<; S. 
C, I'.H) ; Duren v. /Tfp, 2() S. C, 210 : Movltne v. Dia-on, 20 S. C, 2!>() ; Calvert 
V. Nickles, 2(i S. C, :^04 ; Hnbbard v. Cani^jpy-f/oirn Jl/iV/.s, 2fi S. C, 581 ; Glover 
V. liurbidfje, 27 S. C, 805 ; State v. Glover, 27 S. C, 602 ; Dia/ v. Agneiv, 28 S. 
C, 454 ; Johnston v. Holmes, 82 S. C, 434 ; Millar v. iJ. JR., ;i3 S. C, :35» ; />o/>- 
son V. Cothran, lU S. C, 518 ; Draffin v. i?. i?., :« S. C, 464 ; St ate v. Robinson, 
35 S. C, 340 ; Redfeaiii v. Douglass, 35 S. C, 5()9 ; Thomson v. Dillinger, :i5 
S. C, (K)8 ; /)Mroj!^ V. Duranf, :W> S. C, 49. 

Ai^ieals allowed under .subdivisions 1 and 2 are those arising in the course of 
actions, and are intended to affect the final judgment. Subdivision ;> pro- 
vides appeals in matters of an indei)endcnt nature or collateral to an action 
arising upon a special i)roceeding, or in matters arising upon a siimmary i)ro- 
ceednig in an action after judgment, and such proceedings are not intended to 
disturl) or to affect the judgment, but to give it efficiency. The summary 
applications under subdivision 3 are proceedings bailed upon the judgment and 
assuming its correctness, and if the object is to affect a judgment by setting it 
aside, reversing or modifying it, the appeal must be authorized by subdivision 
1 or -Z.—Cnreton v. Hutchinson, 3 S. C, ()(J6 ; Gibbcs v. Elliott, 8 H. C, 62. 

3. A final order atfecting a substantial right made in a .<[)ecial 
proceeding, or upon a suniinary application in an action after 
judgment, and upon such a})peal to review any intermediate 
order involving the merits, and necessarily affecting the order 
api)ealed from. 

An order .setting a.side a.ssignment of homestead, made upon a summary 
application after judgment, affects a substantial right, and is ai)pealable.— 
Wruthrrby v. Jackson, 3 S. C, 228. 

Such final order on nile against Sheriff is ai)iM>alal)Ie. — Emory v. Davis, 4 S. 
C, 2:5. So is judgment in special in-oceeding under Agricultural Lien Act. — 
Johnstone v. Manigault, 13 S. C, 403. And order refusing appeal costs in 
si)eiial proceeding. — Seasc v. Dobson, 36 S. C, 554. But an order di.ssolving 
attachment is not. — Allen v. I'artlnw, 3 S. C, 417. 

An order refusing a WTit of mandantus iti.—E.r Parte Mackey, 15 S. C. 328. 

Order refusing to vacate order of arrest, under final j)roce.s.s, is such final 
order and appealable ; not reviewable under, as an intermediate order, on ap- 



8 CODE OF CI \ I r. IMJOCKDUIJK 

A. D. 1W)I. " 

*■— v~~^ iM'ul from dectree refiuing to allow prisont-r benefit of InKolvent Debt^)rB Act. — 
Hursl V. Snimicln, 'Jll S. C, 47r.. 

Ordt'i" in */i«o irarnintu {•ontinuin(; a ])r('liniinary injunction does not involve 
the merits and is not appealable. — y/i*- Sttifr v. Wi-hI morelaml . "ilt K. C, 1. 

Order in crrtinntri iKTnianently st^iyin^ proeet^linys Ik'Idw is snch final 
order.— 0«/(/«</)i v. Krcis, '.'A) H. C, fil4. 

Power of Court. Sec. 12. Tlii^ Supreme Court iniiy reverse, alliriii or modify 
1S70. XIV., «13. {^)j^. jiidmiient, decree or order ji|)pealed from, in whole or in part, 
and as to any or all of the ])artie8 ; and its judj^^ment shall 1)0 
remitted to the Court helow, to be enforced according to law. 

Therefore, it has no power to grant leave to defendant to answer over.— 
Johnson v. Dawkina, 20 S. C, 5:^3. It cannot originally determine the right to 
counsel fees.— 0^/.s v. JJnnvn, 20 S. C, 58ti. It can make no original deci.sion 
uixju a point not mled below. — Railroad Com. v. litiUruad Co., 'J'2 K. (,"., 'Si\ ; 
Diilaney v. Klford, ±1 S. C, :il8. 

In a c^xse at law it cannot modify the judgment below ; can only reverse or 
affinn.— //os/o/f/ v. Wyiin, 22 S. C, 813. 

Filing of petition for rehearing does not stay remittitur ; there must be an 
order of one of the Justices.— A> Parte Dnnorant, HI S. C. :jOO. Stay of remit- 
titur refused.— iSYrtft' v. Jacobs, 2S S. C. (!0i). Stay of remittitur rescindetl. — 
Ex Parte Smith, 35 S. C. fXMi. Motion to recall remittitur refu.sed.— .SV^^t- v. 
Merriinan, Ho S. C, 007. 

A remittitur which states that judgment below is affirmed is sufficient 
transcript of the judgment above. — Ex Parte Dial, 14 S. C, 5S<). 

Supreme Court loses jurisdiction when remittitur Ls issued, and not when 
filed below.— Ex Parte Dimovant, 10 S. C, :5(X) ; Brooks v. Brooks, 10 S. C.,021. 
And cannot entertain a motion for rehearing after it is issued.— .S'H//jr«H v. 
Speifjhts, 14 S. C, :500 ; Ex Parte Dial, 14 S. C, .58.=). 

The judgment when remitted cannot be altered or modified by the Circuit 
Court, but must be enforced.— Prinf//c v. Sizer, 3 S. C, 337 ; Ex Parte Dimo- 
vant, 10 S. C, 300 ; Ex Parte Knox, 17 S. C, 217. 

If judgment be affirmed, it needs no fiirther action by the Circuit Court. — 
Adrjer v. Prinyle, 13 S. C, 30. And action of Circuit Court is not affectetl by 
pending motion to recall remittitur. — lb. 

A remittitur which orders a new trial in effect sets aside the verdict and 
judgment appealed from. — State v. Ste2)hens, 13 S. C, 287. 

Terms: pre- Sec. 13. 'I'liG Supreme Court shall hold, annually, at the seat 

fcrcncBof 

causes. of government, two sessions, the one commencing on the fourth 

^j/(., §i3;xv., 'Pin.^stijiy (,f Xoveniber and the other the third Tuesday of April ; 
and each of said terms shall be continued for so long a period as 
the public interest may require. Additional terms may be ap- 
pointed and held at such times and ))laces as the Court may 
direct, when the public interests re(piire it. The Court may. 
by general rules, provide what causes shall liave a j)reference on 
the calendar. On a second and each subsequent appeal to the 
Supreme Court, or when an appeal has once been dismi.s.sed for 
defect or irregularity, the cause shall be placed upon the calen- 
dar, as of the time of liling the first ajipeal, and may be noticed 



OF SOUTH CAROLINA. (t 

A. IJ. IWtl. 

Mini |nil <Mi the ralcinliii' t'ni- any su(;C('c;(liii<( term ; and wlini- ^— "^r^— ' 
over, in any uction <ir j>rocou(lin<f in \vhi<ih the Sliite, or any 
State ollicer. or any Hoard of Stale ftHifcrs. is or are sole |>laintiir 
(»r defendant, an appeal has hccn. or shall lie, liroufjht ii|) from 
any jnd^Mnent or order for or a^^ainst him or them, in any (!oiirt, 
such appeal siiall have preference in the Snpreme Court, and 
may he moved hy eithi'r party out nf the order on the eiilendar. 
Ciust! iulvHUWHt wliero State officer is a party.— Ex rarle Eauon, liH S. C, W-J. 

Sec. 14. 'I'lie concurrence of two Judges is necessary to jiro- .iiiiiKin.ni: 
nounci' a judi^Muent. If two do not concur, the case must he [ons"'^ "*''"'* "' 
reheard. Hut no more than two rehearings shall he had ; and '«"'^xiv..9u. 
it" on tile second rehearing two Judges do not concur, the judg- 
ment shall he aflirmed. When two of the Judges do not concur, 
and a rehearing of the case is ordered, the two Judges shall file 
the opinions read by them with the Reporter of the Court ; but 
such opinions shall not be published. Noperson other than the 
.hidges of the Court, the Reporter of the Court, or the counsel 
or attorney of either of the parties to the action, shall have 
access to or a copy of the said opinions ; but such counsel or 
attorney may have access to and a copy thereof. 

Auy two of three Justices of the Supreme Court constitute a vahil Court.— 
( 'ons., Art. IV., Sec. 2 ; Sullivan v. SjieightN, 14 S. C, 358 ; WiUiama v. Benct, 
;!•') S. C, 1.50 ; Aultman v. Utsey, 35 S. C, 590 ; State v. Levelle, 30 S. C, 000. 

Sec. 15, If at a term of the Sujjreme Court proper and con- sheriffs to pro- 
venient room, both for the consultation of the Judges and the ^'5^,'^'JJ' **'■ 
holding of the Court, with furniture, attendants, fuel, lights 
and stationery, suitable and sufficient for the transaction of its 
business, be not provided for in the place whereby law the Court 
may be held, the Court may order the Sheriff of the County to 
make such provision, and the expenses incurred by him in carry- 
ing the order into eifect shall lie paid from the State Treasury. 

Sec. 16. The Supreme Court may be held in other buildings couri.s : wh.-re 
than those designated by law as places for holding Courts, and !;;;1;I,; '"'^""™' 
at a different place, in the same city or town, from that at which "'•.*!"• 
it is appointed to be held. Any one or more of the Judges may 
adjourn the Court with the like effect as if all were present. 



I 




CODE OF CIVIL PROCEDURE 



TITLE III. 

CIRCUIT COURTS. 

SKC. I 8KC. 

17. Division of tlu> State Into ("Ircultti. I 80. After rienoral Swwlons Court, JudRP 

is. TIriii' of llol^lln^' Coiirt.x in First Circuit. may open Court of (Nhumioh I'lwis. 

I'J. Tlinu of buldlUK Courts In Second Clr- 27. Judges' |Kiwer to udjouru Courts of 

cult. Common Pleas. 

30. Time of boldini; Couils In Thlnl Clr- 27a. Power to open Common PIbjls before 

cult. completion of criminal huslnete. 

21. Time of holding Courts In Fourth Clr- 2K. S|K'clal Seswlon-s of Circuit Court*, 
cult. JJ. Petit Jurors In Common Pleas and 

22. Time of holding Courts In Fifth Clr- General Sessions. 

cult. 30. Adjournment of Circuit Court. 

23. Time of holding Courts in Sixth Cli- 31. guallllcatlon of Judges. 

cult, 32. CIrcidt Courts made Courts of rwwrd. 

24. Time of holding CoiLrts in Seventh Clr- 33. clerk and Deputy Clerk of Circuit 
cult. Courts. 

25. Time of holding Courts In Eighth Cir- 
cuit. 

Division of the SectloillT. The State is divided into eight Circuits, as 
S.*°^ ''''■■ follows: 

i8G8%fv^5*72- ^' '^^^ Counties of Charleston, Berkeley, and Orangeburg, 
iBttii; xn^^josi shall constitute the First Circuit. 

1S72, XV., 14U; 

XVI., 37U; lit., 2. The Counties of Aiken, Barnwell, Beaufort, Colleton, and 
290; isn, XIV., ^ , „ ' , / . . 

059, § 2; 1882, Haniptoii, shall constitute the Second Circuit. 

XVII. 082" 1889 

XX., "518;' 1871,' 3. The Counties of Sumter, Clarendon, Williamsburg, George- 
town, and Florence, shall constitute the Third Circuit. 

4. The Counties of Chesterfield, Marlboro, Darlington, Marion, 
and Ilorry, shall constitute the Fourth Circuit. 

5. The Counties of Kershaw, Richland, Edgefield, and Lex- 
ington, shall constitute the Fifth Circuit. 

6. The Counties of Chester, Lancaster, York, and Fairfield, 
shall constitute the Sixth Circuit. 

7. The Counties of Newberry, Liiurens, Spartanburg, and 
L^nion, shall constitute the Seventh Circuit. 

8. The Counties of Abbeville, Anderson, Oconee, I'ickens, 
and Greenville, shall constitute the Eighth Circuit. 

Time of hold- SeC. 18. '''be Circuit Courts in the First Circuit shall l)c held 

I n g Courts in ,. , , 

First Circuit. as lolluws : 

1887, XIX., 987. j_ The t^ourt of General Scssious at Charleston, for the ('ouuty 
of Charleston, on the fourth ^Monday in February, the tliird 
Monday in June and the second Monday in N<»vember ; and the 
Court of Common Plejis at the same place on the first Monday 
in March, the fourth Monday in June and the thii'd Monday in 
November. 

II. The Court of General Sessions for the County of Berkeley 



1886, XIX., 478. 



shall be held at Mount Pleasant on the first Mondavsin Februarv 



OP SOUTH CAROLINA. 




und ,hiiio uikI tho second Moiiday in ()('t<ilicr; and tlic Court of 
Coimiion I'loas at the same phme on the WcdnesdayH succeeding 
Lho first Mondays in Fehriiary and June and the Wednesday suc- 
ceedin<( the second Monday in October. 

III. The (yourt of (leiu'nil Sessions for the County of Orange- \^xij. 'm 
l)uri,^ shall be held at Orangeburg on the second Monday in 
January and the first Monday in May and the third Monday in 
St'|)teTnl)er ; and the Court of Coninion Pleas at the same ])lace 
on the Wednesdays succeeding the second Monday in January, 
the lirst Monday in May and the third Monday in September. 

Sec. 19. The Circuit Courts of the Second Circuit shall be Time of hoid- 

int( Courts Jn 
lu'id as follows : second circuit. 

1. The Fall Terms : 

'i'he Court of (Jeneral Sessions at Beaufort, for the County of Fail Term. 
Heaufort, (Ui the second Afonday in September ; and the Court ^^q**^' xviii., 
of Common Pleas at the same place on the Wednesday following 
said Monday. 

The Court of (Jeneral Sessions at Aiken, for the County of 
Aiken, on the fourth Monday in September ; and the Court of 
Common Pleas at the same place on the Wednesday following 
the said fourth Monday. 

T^he Court of General Sessions at Hampton, for the County of 
lJam))ton, on the second Monday in October ; and the Court of 
Common Pleas at the same place on the Wednesday following 
the said second Monday. 

The Court of Oeneral Sessions at Walterboro, for the County 
of Colleton, on the fourth Monday in October ; and the Court of 
Common Pleas at the same place on the Wednesday following 
said fourth Monday. 

The Court of General Sessions at Barnwell, for the County of 
Barnwell, on the second Monday in November; and the Court of 
Common Pleas at the same place on the Wednesday following 
said second Monday. 

2. The Winter Terms : winter Term. 
The Court (jf (Jeneral Sessions at lieaufort, f(tr the County of 

Heaufort, on the lirst Monday in February: and the Court of 
Common Pleas at the same place on the Wi'dnesday following 
said lirst Monday. 

The Court of General Sessions at Walterboro, for the County 
of Colleton, on the third Monday of February ; and the Court of 
Common Pleas at the same i)lace on the Weilnesday following 
said third Monday. 



n CODE OF CIVIL PROCEDURE 

A.D. IKiU. 

' 'Die Court of (Jeueml Sessions at lI:niipton, for the County of 

Hampton, on the first Monday in March ; and the Court of Cora- 
nioii Pleas at the same phiee on the \Vednes(hiy foUowing said 
lirst Monday. 

Tlie Court of (Jeneral Sessions at Barnwell, for the C!ounty of 
Barnwell, on the third Monday in March ; and tlie Court of 
Common Pleas at thC' same place on the Wednesday following 
said third Monday. 
Summer Term. Tlie Court of (Jeneral Sessions at Aiken, for the County of 
1885, XIX., 11. Aiken, on the second Monday in April ; and the Court of C'om- 
mon Pleas at the same place on the Wednesday following said 
second Monday. 

3. The Summer Tei'ms : 

The Court of General Sessions at Beaufort, for the County of 
Beaufort, on the fourth Monday in May. 

The Court of General Sessions at Walterboro, for the County 
of Colleton, on the first Monday in June. 

The Court of General Sessions at Hampton, for the County of 
Hampton, on the second Monday in June. 
Special provi- The Court of General Sessions at Aiken, for the County of 

slonsastoAikcn ,i -i • i m i • t 

and Barnwell Aikcu, Oil the third Monday in June. 

"seisec. 2401 The Court of General Sessions at Barnwell, for the County of 

of Vol. 1. Barnwell, on the second Monday in July. 

4. Should the business of the Courts of Aiken County at the 
April Term, and that of the Courts of Barnwell County at the 
November Term, be not comjdeted at the expiration of two weeks, 
the presiding Judge shall continue the same in session a sufficient 
time to dispose of said business, and the jurors there in attendance 
shall be retained as long as their services may be necessary : Pro- 
vided, The continuance of said Courts shall not contlict with the 
duties of Judges in holding Courts in other Circuits, or with the 

Time of hold- provisions of Section 20 of this Chapter. The third week of said 

1 n g Courts in ^ ' 

Tiiird cireuit. Winter Tcmi for Barnwell County shall be devoted exclusively 

i8;ii), ' XX.'.' 700: to the trial and hearing of equity causes and the disposition of 

I8.tl, XX., 111;J. ,1 ,, L ■ • L-u e ■ 

other matters not requiring the presence of a jury. 

Sec. 20. 'I'lic Circuit Courts of the Third Circuit shall be 
held as follows : 

1. The Court of General Sessions at Florence, for the County 
of Florence, on the last Monday in January, tlie fourth Monday 
in May and the third Monday in September ; and the Court of 
Common Pleas at the same place on the Wednesdays following 
the last Monday in January, the fourth Monday in May and the 
third Monday in September. 




OF SOUTH CAROLINA. 

2. Tlu' Court ol' (iciicral Sewsioiis at (ieorgetown, lor tlio 
County of Georgetown, on the second Monday in February, the 
second Monday in May and the seventh Monday after the third 
Monday in .Se})tenil)er ; and tlie Court of Common IMcas at the 
same phice on the Wednesdays first succeeding the Mondays 
heroin fixed for the liohling of the Court of (Jcneral Sessions at 
said ()hice, except tlie May Term thereof. 

.'}. The Court of General Sessions at Kingstree, for the County 
(if A\'illi;itnsburg, on the third Mon(hiy in February, the third 
Moiiiiay in May and tlio fifth Monday after the tliird Monday in 
September ; and tlie Court of Common Pleas at the same place 
on the Wednesdays first succeeding the Mondays herein fixed for 
holding the Court of General Sessions at said place, except the 
May Term thereof. 

4. The Court of General Sessions at Manning, for the County 
of Clarendon, on the fourth Monday in February, the first Mon- 
day after the fourth Monday in May and the fourth Monday 
after the third Monday in September ; and the Court of Com- 
mon Pleas at the same place on the Wednesdays first succeeding 
the Mondays herein fixed for holding the Court of General Ses- 
sions at said place, except the May Term thereof. 

5. The Court of General Sessions at Sumter, for the County of 
Sumter, on the first Monday after the fourth Monday in Febru- 
ary, the second Monday after the fourth Monday in May and the 
second Monday after the third Monday in September ; and the 
Court of Common Pleas at the same j^lace on the Thursdays first 
succeeding the Mondays herein fixed for holding the Court of 
(Jeneral Sessions at said place, except the May Term thereof: 
Provided, That no ])eremptory call of Calendar No. 1 shall be 
inadt' in said County of Sumter before tlie second Monday after 
the lomlh Monday in i"\'liriiary and the third Moiuhiy after the 
third Monday in Se[)tcnil)er. 

Xotliing contained in this Section shall t)e construed to })re- 
vent the presiding Judge from hearing and determining in any 
nf the Counties of the Third Circuit, at the Summer Term of 
the Court, all cases which do not re(|uire the intervention of a 
jiirv. 

Sec. 21. 'I'lic ( 'ii"cuit Courts of the Foui'th Circuit shall l)c Time of iioiii- 
held as lollows : F..iirtli Cln-ult. 

1. The Court of General Sessions for the County of C'hester- ^i^'^^jj^J^^iy' 
Held, at Chesterfield Court House, on the Tuesdays next follow- '*''•'''• 
ing the first Monday of February, the fourtii Monday of May 



14 CODE OF CIVIL PKOCEDUKE 

A. D. 18»4. 

"""■"v— ^ and the first Monday of September ; and the Court of Common 
Pleas at the same phiee on the Wednesdays next following the 
first -Monday of February and the lirst M^mdav of September. 

2. The Court of CJeneral Sessioiis for the County of Marlboro, 
at Benuettsville, on the third Monday of February, the Monday 
after the fourth Monday of May and the third Monday of Sep- 
tember ; and the Court of Common Pleju* at the same place on 
the Wednesdays following the third Mondays of February and 
September. 

3. The Court of (leneral Sessions for the County of Darling- 
ton, at Darlington Court House, on the first Monday after the 
fourth Monday of February, the second Monday after the fourth 
Monday of May and the fourth Monday after the fourth Monday 
of September ; and the Court of Common Pleas at the same place 
on the AVednesdays following the first Monday after the fourth 
Monday of February and the fourth Monday after the fourth 
Monday of September. 

1889, XX., 358^ "i- The Court of General Sessions for the County of Marion, 
at Marion Court House, on the Monday following the fourth 
Monday after the fourth Monday of February, the third Monday 
after tlie fourth .Monday of May and the first Monday after the 
fourth Monday of September ; and the Court of Common Pleas 
at the same place on the Wednesdays following the Monday 
succeeding the fourth Monday after the fourth Monday of P^eb- 
ruary and the first Monday after the fourth Monday of September. 
lb, f 5. The Court of General Sessions for the County of Horry, at 
• \ Conwayboro, on the fourth Monday after the fourth Montlay of 
hS^'^V " J February, the fourth Monday after the fourth Monday of May. 

^ to continue for three hours, if so long be necessary, and the third 
Monday after the fourth Monday of September^^ and the Court 
of Common Pleas at the same place on the WedneSiliryg following 
the fourth Monday after the fourth Monday of February and the 
third Monday after the fourth Monday of September. 
1882 XYU 844 "^^^ busiuess of the Court of General Sessions shall have pre- 
cedence in the respective Counties of this Circuit, and this Sec- 
tion shall not be so construed as to terminate the Court of ( Jeneral 
Sessions before the business thereof is disposed of ; nor shall it 
be so construed as to prevent the opening of the Court of Com- 
mon Pleas for the purpose of hearing causes by consent of parties 
before the times herein fixed for the opening of the Court of 
Common Pleas. And the presiding Judge of any of said Courts 
is hereby authorized to open the Court of Common Pleas, and to 



OF SOUTH CAROLINA. 1.-) 

A. I». IH.Il. 

try, 1)V consent of });irtics. at any time between tlie <lay« on wliicli ' • 
riaiil ('irciiit Courts o))en and c;losc, any civil action, in the sanic 
niunner, and with the same etTect, sus if said action should he 
tried at a regular term of the Court of Common Pleas : Pro- 
vulf'd, That nothing; in this Scetion contained sliall licconstrned 
to extend the dune Term of the Court of (Jeneral Sessions for 
the County of Horry. 

Sec 22 The Circuit Courtsof the Fifth Circuit shall l)e iicld ti....- of hui.i- 

as follows : Fifth Circuit. 

1. The Court of General Sessions at Camden, for the County '"^' ^^ '•' ^'•w- 
of KiM-shaw, on the first ^Mondays in February, June and Sejjtcrn- 
i)ei" ; and the Court of Common Pleas at the same i)lace on the 
"V nk^i^Xr f'»ll"\viiis: fSclirst Mondays in February and Septem- 
ber. 

'I. The Court of (ieneral Sessions at Lexington, for the xvi.. .571.722. 
( 'ounty of Lexington, on the third Monday in February, the 
second Monday in June and the third Monday in September : 
and the Court of Common Ple_as at the same place on t^wr'W^- 7 / 

l*4Li4il4♦*^^<^+U.\v^%i^ the IwiS^oionday in February and the third jCuJy /^^Q _ Sec 
Monday in September. '^'^^^/^fiy5\^s-'< 

3. The Court of General Sessions at Edgefield, for the County "MIT xvni., 
of Edgefield, on tlic ttrst Monday in March, the first Monday in n' J / .~\ 
August and the ««t*4i«i Monday in IS^oveniljei' ; and the (.ourt of L J^^^tLx) ^ r^^ 
Common d^leas at the same place on the seo«nd Monday in March J 

and the tsS^T^Ionday in November. 

4. The Court of (Jeiicral Sessions at ^himbia, for the County ^ 

of Ricliland, on the Muvfl j ^londay in Xl al- * di , the fourth Monday / , 

in June and the-^^Monday in October; and the Court of Cyin-^f ^Ua^ ./a^*^ 2- 

mon Pleas at tlio same place on the Moiiday after the 1wh4?i 'i ^ 

Monday in Vl^^. the Monday after the fmmlrMonday in June ><. 

and till' ■»2ima^londay in October. T*^ ^^ 

Sec 23. The Circuit Courts of the Sixth Circuit shall be. nm.- of h..i<i- 

*j\^\j. /wv^. I n ^ ((lurts III 

held as follows : «'-^"> cir.Miit. 

1. The Court of General Sessions at Winnsboro, for the County ' ' 

of Fairtield, on the third Monday in February, the second Mon- 
day in June and the third Monday in September ; and the Court 
of Common Pleas at the same i)lace on the Wednesdays following 
the third Mondays in February and September, 

t. The Court of (Jener^ Sessions at Lancaster, for the County 

of-Jjancaster, f)n the fii'st Aronday in March, the third Monday 

AT-TiT dune and the first Monday after the fourth Monday in Sej)- 

j,t/fcmber; and the Court of Common Pleas at the same place on 



\f^ 




CODE OF (I ML PUOCEDURE 



llie Wcdiu'sday t'ollowin^r tlie liVst Mondiiy in March ami the 
Wediu'sdiiy fi»H()\viii.i( the tirst Moiuhiy afli-r the fourth Monday 
in Hepteniber. 

3. The Court of (lenoral Sessions at Chester, for tlie County 
of C'hester, on tlie tliird Mon(hiy in Mareli, the fourtli Monday 
in June and the tliird Monday in October ; and the Court of 
Common Pleas at the same place on the Wednesdays following 
the third Monday in March and the tliird Monday in Octol>er. 

4. The Court of (ieneral Sessions at Yorkvillc, for the County 
of York, on the first Monday after the fourth Monday in March, 
the first Monday after the fourth Monday in June and the first 
Monday after the fourth Monday in October ; and the Court of 
Common Pleas at the same place on the Wednesdays following 
the first Monday after the fourth Monday in March and the first 
Monday after the fourth Monday in October. 

Time of hold- Sec. 24. The Circuit Courts of the Seventh Circuit shall be 

Ing Courts In i ^^ ^, t- ii^,„, . 

Seventh circuit, held as toilows : 

1889, XX., :i59. 1. The Court of General Sessions at Newberry, for the County 
of Newberry, on the third Monday in March, the second Monday 
in July and the second Monday in November ; and the Court of 
Common Pleas at the same place on the fourth ]\londay in March 
and the third Monday in November : Provided, however, That 
the provisions of Section 27 of the Code of Civil Procedure shall 
not apply to the Courts held in Newberry County. 

2. The Court of Ceneral Sessions at Laurens, for the County 
of Laurens, on the third Mondays in February, July and Sep- 
tember ; and the Court of Common Pleas at the same place on 
the Wednesday following the third Mondays in February and 
September. 

3. The Court of General Sessions at Union, for the County of 
Union, on the first Mondays in March, July and Oct()l)or ; and 
the Court of Common Pleas at the same place on the ^\'ednesday 
following the first Mondays in March and October. 

4. The Courtof General Sessions at Spartanburg, for the County 
of Spartanburg, on the fourth Monday in January, the fourth 
Monday in July and the third Monday in October ; and the 
Court of Common Pleas at the same place on the Wednesdays 
following the fourth Monday in January, the fourth .Monday in 
July and the third Monday in October. 

inTco''ur{^°'in SgC. 25. The Circuit Courts of the Eighth Circuit shall be 

Eighth circuit. 1 „i 1 , (-• 11, .... . 

i88»,xx.,3C0:li^''*'i-"^"^'"^^^- 
1891, XX., 1113. 1. The Court of General Sessions at Abl)eville, for the County 



OF SOUTH ('AI{OI>I\.\. n 

A. I). IhlM. 

mT Alilx'villc. oil tlic third Moiuliiy in .Jiiniiiirv, llic lirst Moiidiiy '^" '^ ' 
ill .liiiu!;iii(l tlui sct'oiul Mdiidiiy in October. Tlie Ooiirt of CoDi- 
iiioii ricas for said County ut tlio sanu; place on the Wednesdays 
next I'dllowing the third Monday in January, the first Monday in 
.lime and the second Moiuhiy in Octolter. 

'i. 'I'he Coui'tor (leneral Sessions at Anderson, for the ('ount,y 
(>r AikUm'soh. on the second Monday in l<\'hruai"y, i\\v. fourth 
Monday in June and the fourth Moiuhiy in October ; and the 
(ointof (!onnnon Pleas for the said County at the same jtlace 
on the Wednesdays next following the second Monday in 
Fi'bruary, the fourth Monday in dune and the fourtli Monday 
in October. 

3. The Court of General Sessions at Walhalla, for the County 
of Oconee, on the fourth Monday in Feliruary, the first Moiuhiy 
in July and the first Monday in October ; and the Court of Com- 
mon Pleas for said County at the same place on the Wednesdays 
next following- the fourtli Monday in Fel)ruary, the first Monday 
in July and the first Monday in October. 

4. The Court of General Sessions at PickenS;, for the County 
of Pickens, on the first Monday in March, the second Monday 
in July and the third Monday in September ; and the Court of 
Common Pleas for said County at the same place on the Wednes- 
days next following the first Monday in March, the second Mon- 
day in July and the third Monday in September. 

5. The Court of General Sessions at Greenville, for the County 
of Greenville, on the second Monday in March, the third Mon- 
day in July and the second Monday in November. The Court 
of Connnon Pleas for said County at the same place on the 
Wednesdays next following the second i\Ionday in March, the 
third Monday in July and the second Monday in November. 

(). No civil business requiring a jury shall be heard at the 
Summer Term of the Court of Common Pleas for any County 
in said Circuit, except in the County of Greenville. 

Sec. 26. Wherever in this Title provision is made for Courts Aft.-roonomi 

ot (ieneral Sessions only, the Judge presiding shall, at the con- jutiVc'inayoiM-ti 

elusion of any such Court of General Sessions, open the Court of nJon Vumis.* "'" 

Comnion Pleas without juries, and give judgments by default on i]^*^ xViii' "ssc 

Calendar 3, hear and determine equity causes, and transact all 

other business of a regular term of a Court of Common Pleas, 

except trials by jurv. 

Sec. 27. Should tlie l)usiness before tlie Court ot (ieneral to mijouni court 
n • i 1 i 1 1 i 1 .1 . , „ , , o f C o m in o n 

Sessions at any term not be completed on the arrival of tlie day picjis, 

fixed by law for the holding of the Court of Common Pleas for is^[°'xx)!'35T' 



I 



18 CODE OF CIVIL PROCEDURE 

A. D. 18W. ~ 

""■ — V — -^ said County, the Judge presiding may, in his discretion, adjourn 
said Court of Conirnon Pleas until the business of the Court of 
General Sessions sluill have been concluded. But the provisions 
of this Section shall not apply to the Courts held in the County 
of Newberry, 

It is necessary to such adjouniraeut that the Court of tk^inmon Ph'as should 
be first oi)ened on the day fixed for its holding.— .WcA'f//ar v. Parker, 'M 8. C, 
2;{7. But where the t)ffic«rs and machinery are present in court hou.se on the 
fixed day. that Court is then openetl by oi)eration of law, without any form- 
ality.— //rov/ni V. Trimmu-r,.)0 S. C, ;}!U ; MiUer v. George, 'M S. C, 5a»i. 

Power to open Sec. 27a. Should the business before the Court of Sessions 

befJIre^'coinpie^ at any Term in any Circuit in this State be completed or sus- 

bo siness. "^ °^ pciulcd before or after tlie day fixed by law for the opening of 

^888, xvin., i\^Q Court of Common Pleas for any County in the State, the 

presiding Judge may, in his discretion, before the completion of 

the criminal business, open the Court of Common Pleas for the 

trial of all causes or the dispatch of all business that may be 

pending in said Court in which the parties interested are ready 

to be heard. 

Special ses- Sec. 28. Special sessions of the Courts of Common Pleas or 

Courts" "^"' General Sessions may be held whenever so ordered, either by the 

1878^' xvT" 395' Cbicf Justice or by the Circuit Judge at the time holding the 

§3; 1884, xvni., Circuit Court of the County for which the extra term may be 

ordered, of which extra term such notice shall be given as the 

Chief Justice or the Circuit Judge so ordering the same may 

direct. If such extra term of either or both the Courts aforesaid 

be ordered by the Chief Justice, he may order any one of the 

Circuit Judges to hold the same ; but if such extra term be 

ordered by a Circuit Judge, as hereinbefore provided, then such 

extra term shall be held only by the Circuit Judge so ordering 

the same. No cause shall be tried at any extra term of the Court 

of Common Pleas for any Circuit unless the said cause shall have 

been previously docketed upon some one of the calendars of the 

last preceding regular term of said Court. 

The Clerk of such Court shall, at least fifteen days before the 
commencement of such special session, cause the time and place 
for holding the same to be notified, for at least two weeks suc- 
cessively, in one or more of the newspapers published nearest the 
place where the session is to be holden. All processes, writs, and 
recognizances of every kind, whether respecting juries, witnesses, 
bail, or otherwise, which relate to the cases to be tried at the 
said special session, shall be considered as belonging to such ses- 
sion, in the same manner as if they had been issued or taken in 



OF SOUTH CAROLINA. 10 

A. D. IWII. 

reference thereto. All business (Icpciidin^f for trial a ( any special ""* ^^ ^ 
session shall at the close thereof be couHidered as of course 
removed to (lie next stated term of Court. Said sj)ecial session 
shall be held in pursuance (»f an order whir-h shall be transmitted 
to the Clerk of the Court, and by him cntcrcij on the records of 
the Court. 

Sec. 29. I'ctit jurors summoned to attend the Court of (ien- ivut jumrH m 
i-ral Sessions in any County, except the County of Charleston, anil'"'; '" n « l-T] 
shall also attend and serve as jurors for the Court of Common**^'*'"'''*- . ^^ 

• 1070, XI\ ., !a;*. 

I 'leas next ensuing in and for said County, except as otherwise 

pi'ovidcd ill Section •2401 of the Revised Statutes. 

Sec. 30. The Judge of the Circuit Court shall have power to Adjournment 

direct any Circuit Court in his Circuit to be adjourned over to a "';)""g';^""'^ 

future day designated in a written order to the Clerk of said 

Court, whenever there is a dangerous and general di.sease at the 

))lace where said Court is usually holden. 

Such adjoiu'iiraont baviiig been ordered, no inquiry can be made a-s to 
whether conditions existed. — Adickrs v. Allison, 21 S. C, 2'M. But when the 
term of Cxnirt fixed by law has expired, the Judge has no power to continue 
its existence and convene it at another time.— £"0; Parte Lilly, 7S. C, ^iT.i. 
But Judge may order adjournment of Court from day to day till a fixed day 
before the next succeeding Court, and try a cause on that day. — DeLeon v. 
liin-rrll, 2'J S. C, 412. 

Sec. 31. The Judges elected and qualilied by taking the oath Quaiiticat 1 o n 
prescribed in the thirtieth Section of the second Article of the °Jj"|"'g^^*j'i'^^,jj 
Constitution, and the oath with respect to dueling, which oaths ^~- 
shall be administered by one of the Justices of the Supreme 
Court, shall forthwith enter upon their duties. 

Sec. 32. The Circuit Courts herein established shall be Courts rirouit courts 

of record, and the books of record thereof shall, at all times, be record; ' 

subject to the inspection of any person interested therein. i870. xiv., §82. 

Sec. 33. The Clerk elected in each County pursuant to Sec- riork and 
tion -y, (jf Article IV. of the Constitution shall be Clerk of the circuitcourts." 
Courts of General Sessions and Common Pleas, and may appoint ^b.,iSi. 
a deputy, who may perform the duties of Clerk, for whose acts 
such Clerk shall be responsible, and a record of whose appoint- 
ment shall be made in the Clerk's office, and such appointment 
may be revoked at the ])leasurc of the Clerk ; and in case no 
Clerk exists, the Judge shall have authority to a})point a person 
who shall perform the duties of Clerk, and said Deputy Clerk, 
or the one appointed by the Judge, shall be required to give tlu' 
usual bond before entering on the duties of the office. 

Generally !U< to this Title : — 

Proceedings of a Circuit Court, held by the Judge of another Circuit, at 11 
time unauthorized by law, are void.— A'.r i'uiir DcUay, 3 S. C, ;■>(>». 



20 



CODE OF CIVIL PROCEDURE 



A. D. 1«VJ. 



Where, after the regular Hession of a Circuit Court has commenced, an Act 

tninsftTs the County to iinothor ('ircuit and Hxos another (laj* for holding the 
Court, it hiiH jurisdiction to continue its session and to try vnni'H.—Slnltun v. 
^f(thin, 4 S. (.'., 541. 

Circuit Judges are confined, in the performance of their judicial duties, to 
the (-"ircuits to which tliey are ro«pe<'tively elected, excojjt when authori/x-d 
])y statute to go Ix'yond that limit.— (Vms., Art. IV., Hecs. V.i-\i ; A'./ I'nrtf 
l',irh;-)\ (i S. C , 47:i ; Slatr v. I'ltiker, 7 .S. C., :j:;.'i. 



TITLE IV. 

PROBATE COURT. 



Skc. Sec. 

34. Se.ssions. 53. 

35. Court of record . Clerk. M. 

36. Duties of Clerk. 

37. Jurisdiction of Judges. 55. 

38. In relation to guardians. 5(;. 

39. Administration and probatt; of wills. 

40. Settlement of estate in the County 
where will proved ; sale of real estate. 

41. When to grant discharge to adminls- , 58. 
trators, &c. I 

42. All proceedings relative to estates un- 50. 
der guardian.ship had in the Court of (iO. 
Probate. 

43. Judges not to act when interested. 01. 
When Judges of adjoining County to 

act. 02. 

44. Power to administer oaths. 

45. Probate Court, may issue warrants and 03. 
processes. 

40. In cases of contumacy may commit to j 

jail. 04. 

47. When depositions may be taken and 
used. 65. 

48. Exclusive jurisdiction after once ac- 
quired. 

49. Jurl.sdiction not to be collaterally im- 00. 
peaclK^d. 0^ 

50. When minor may choose guardian ; j OH. 
guardian interested ; where appointed. , Oil. 

51. Authorized to permit sale and settle 70. 
accounts of guardian. 

52. Judges may appoint times and places 
for holding Courts. 



Op«'n at all times for certain business. 
Adjournment of Court. When by 
Clerk. 

Appellate jurisdiction of Circuit Court. 
Jurisdiction of Supreme Court in pro- 
bate matters. 

ApiK'al U) the Circuit Court to be taken 
within llfteen days. 

CertQed copies of record to be Oled In 
Circuit Court. 

Proceedings stayed by appeal. 
How Circuit Court may proceed to the 
trial. 

Appellant neglecting to enter appeal, 
judgment afllnned with costs. 
Final decision to be certilled to Probate 
Court. 

Probate Judge not to have voice In 
determining appeal. When may prac- 
tice law. 

Proceedings may l)e commenced by 
petition. 

Supreme Court to make rules. County 
CommLssloners to provide funilture, 
Ac, for oOlce. 
May punish for contempt. 
Knrollmt'nt of decnn's. 
To keep Index of decrees enrolled. 
Kmpowerwl to Lssuc executions. 
Judge may commit lunatics, &c., to 
Lunatic Asylum. 



_Ses.sions. Section 34. A Court of Probate is lierchy established in 

i8«9.'*'xrv![''^« : ^*^c'^ o^ ^^^^ several Counties in this State, which shall hold a ses- 
1870, XIV., 935. gj^j^ ^^ ^j^g l^,,j,(. Monday in each month, at or near the court 

house, and continue thereafter so long as the business may 
require. 



OF SOUTH CAROLINA. 21 



I 



A. I). WM. 

Sec. 35. 'I'lif^ ('(lint of I'roltalc sh:ill Ik; ii Court of rcconl "" '' ' 
, ■ , • 1 /.i I 1 1 • i (iiiirtofriK-oril; 

,111(1 have a seal ; may aj)j)omt a ( Icrk ami may rcniovci nini at ci^rk. 

picasiiri' ; and oil lailiin; of the Court to a[)|)oint such Chirk, the xVi" m *'*^' 

.Indue of I he Court shall perform all the duties of Clerk: /'ra- 

ridctL 'riia.t no iktsoii holdiiiu" the office of (!lerk of the i'ro- 

liate Court under and hy virtue of the ap|iointmcnt of the I'ro- 

liatc .ludge of any County of this State siiali practice in 8uch 

Court as an attorney or counsellor at law. 

Boinp a Court of rocoid, it is not an inferior Court within the limits of its 
.iurisdiction, whifh is large. — Thomasv. Poole, 1!) S. C, '-^^^i ; Turner v. Mdlow, 
■J I S. C, ."'.IS ; atatc V. liuniside, 33 S. C, 27(>. Facts appearing on its record 
cannot be attacked collaterally. —Tederall v. Bouknighf, 2.5 S. C, 27.5. 

Sec. 36. 'I'lie Clerk of the Court of Probate shall keep a true nuuesof cieric. 
and fair record of each order, sentence and decree of the Court, i«<o. xiv., e.37. 
and of all other things proper to be recorded ; and on the legal 
W'v^ bein<r paid, shall give true and attested copies of the files and 
})roceedings of the Court. All copies so attested shall be legal 
evidence in the Courts of this State. 

Sec. 37. Every -Tudge of Probate in his County shall have Jurisdiction of 

jurisdiction in all matters testamentary and of administration, in ~Yh7JM. 

business appertaining to minors and the allotment of dower, in 
cases of idiocy and lunacy, and of persons n(m cowjjoies mentis. 

As to matters testsimeutary :— 

\Vliat is the extent of such jurisdiction, conferi'ed by the Constitution, has 
not been determined.— T/ioj/itt.s v. Poole, 19 S. C, 323. 

It does not include action by cestui que trust against his trustee for account- 
ing, unless it involves matters testamentary. — Poole v. lirown, 12 S. C, .5.5tJ. 

Nor action of one legatee against another to recover money paid to her in 
excess of her share as found by decree of Probate Court. — Miller v. St(irk\ 2".i 
S. C, 32.5. 

In probate of wills the jurisdiction extends only to its execution, and not to 
its construction. — Prater v. Whittle, Ki S. C, 4(). 

Letters testamentary cannot be granted to one as executor not nominated 
by the will.— yi/f/Ar/;/ v. Frazier, 20 S. C, 144. 

Probate Court may settle an estiite upon i)etition of the executors as being 
a matter testamentary. — In lie Corin Ksf.. 20 S. C, 47(). 

What are not ca.ses of " matters testamentary or of administration." — Cald- 
well v. Little, 1.5 S. C, 2:i(i. 

As to matters of administration : — 

Such jurisdiction docs not embrace a case against administrator in his jx^r- 
sonal character for wrong done in course of administration.— A*o?>('r/.s v. Johns, 
10 S. C, 109. 

As to business of minors : — 

What the extent of this jurisdiction has not been determintMl.— 77/(»»i(f.s- v. 
Poole, 19 S. C., .S2;i. 

It is questionable whether it embriu-es proceetlings by a ward having at- 
t4un('<l majority to lomjMsl his guardian to account. — Waller v. Cresswell, 4 S. 
C, 3.5.5. 



n CODE OF CIVIL PROCEDURE 

A. D. IKM. ^" 

"^ - r"~-^ Probate Ck)urt may appoint ffUJirdiunH nd lilim for minoi-s in causes in the 
(.'ourt of Ckmunon Ph'as. — Trnpicrv. W'nlili,, Hi S. C, '^S'.l. 

Ah to dower : — 

Tile juris<liction is concurrent with the juriMiction of the Court of Common 
Pleas.— ^^J7^• V. Clark, 17 S. C, :^2:i. 

Sudi jurisdiction is not ousted lH>c«use questions of fact are involved. — 
Stewart v. Blt-asc, 4 S. C, 87. Nor limited to crises where there is no dispute 
a-s to the ri^ht of dower or the title to the land.— yiV*/)*-// v. lAinyley Man. Co., 
12 S. C, 4(^5. 

As to idiocy, lunacy and nun compotm mciitis:— 

The juri.sdictiou is not exclusive, but is concurrent with that of Court of 
Common Pleas.— llVj/Av/- v. liusscl, 10 S. C, 82. But the Probata Court can- 
not grant leave to traverse an iiKiuisitioii in lunacy ; that can only be done in 
the Court of Common Pleas.— /^. 

In relation to Sgc. 38. 'J'lit^ Judge of Prol)ate shall have jurisdiction in rela- 
^F.gsiT-con^ ^^^^^ ^^ ^'^^ appointment and removal of guardians of minors. 
Art. IV., «20. insane and idiotic persons, and persons ?i07i compotes mentis, and 
in relation to the duties imposed by law on such guardians, and 
the management and disposition of tiie estates of tiieir wards. 
He shall exercise original jurisdiction in relation to trustees ap- 
pointed by will. 

Question whether such jxmsdiction as to duties of guardians reaches the 
case where the ward is of age. — Waller v. Cresswrll, 4 H. C, ;i"K>. 

He has no jurisdiction to appoint another trustee in place of deceased testa- 
mentary trustee.- TAomas v. Poole, 19 S. C, 323. 

Administration Sec. 39. The probate of the will and the granting of admin- 
an^^^pro a o jg^j.j^y^jj „f ^j^g estate of any person deceased shall belong to the 
1870, XIV., §40. Judge of Probate for the County in which such person was last 
an inhabitant ; but if such person was not an inhabitant of this 
State, the same shall belong to the Judge of Probate in any 
County in which the greater part of his or her estate may be. 
Settlement of Sec. 40. All proceedings in relation to the settlement of the 
oJunly'^vhere estate of any person deceased shall Ije had in the Probate Court 
oVreaV&staie"'^ ^^ ^^^6 County in which his will was proved or administration 
T870, XIV., 841; of cstatc was granted. And whenever it shall apiiear to the 
satisfaction of any Judge of Probate that the personal estate of 
any person deceased is insufficient for the ])ayment of his debts, 
and all persons interested in such estate being first summoned 
before him, and showing no cause to the contrary, such Judge 
of Probate sliall have power to order the sale of the real estate 
of such person deceased, or of so much thereof as may be neces- 
sary for the payment of the debts of such deceased pers^n^ upon 
such terms and in such manner as he may think best ; may 
grant orders of injunction to stay actions or proceedings against 
the executors or administrators of such decejvsed person, and 



OF SOUTH CAROLINA. 23 

A. D. IK>1. 

siu;li other orders as niiiy he necessary to secure llie inarHlialing ""-"^v — -^ 

and adiiiinistcriiiL!: the assets of such deceased person ; siicli jiro- 

ceediDijs to he hy simimons and complaint, th(> practice wlierein 

sliall conform as nearly as may l)e to the form and practice in the 

Courts of Common Pleas of this State. 

The Constitution ctrnferw the jurisdiction to make such siilc ot real estate. — 
McNtnnee v. Wdtrrhuri/, 4 S. C, ITrfi. It is concurrent with the jurisdiction of 
the Court of Coinnion Pleas in such viis(*h.— Jordan v. Mosi-s, lOH. C.,4:51. 
Either in an action hy a creditor for that purpose.— /'iji/cj/ v. liobrj-tson, 17 S. 
C.,4:}.'j; Scrudtjs v. Foot, 19 S. C, 274. But not until the will has been pro- 
bated or letters of administration grimted.— Whiti'sidcs v. Ikirher, 24 S. C, 
:i78. Or in such action by the personal representative.— A/cA7t?Hw v. Water- 
bury, 4 S. C, loC) ; Shaw v. liarksdalc, 25 S. C, 204. The Probate Judge must 
determine the necessity of such sale.— Huchfr v. Fabian, 31 S. C, 212. His 
decree directing the sale of more land than necessary for the purpose cannot 
be questioned in the Court of Common Pleas.— /^. Nor can he be controlled by 
uiandaniKs from that Court in making such sales or executing titles.— 57«^c' v. 
Hunisiilf, :iii S. C., 27t). He can determine the validity of an alleged deed under 
whic-h one of defendants claims title from intestate.— G'j-eryori/ v. liliodrn, 24 
S. ('., IMJ. He can only sell the interest of the deceased in the land, not the 
rights of the parties to the action therein as heirs of another party.— 3fcLfo<mi 
v. liion, 24 S. C, 411. Cannot sell as land of deceased land surrendered to dis- 
tributees of deceased by his mortgagor.— //arnson v. Liyhtsey, 32 S. C, 21)3. 

Sec. 41. It sliall not he lawful for any Judge of Probate in whentoirrant 
this State to grant a final discharge to any executor, administra- ministr«U)re.*c' 
tor, trustee, guardian or committee, unless such executor, admin- gY*"''' *^'^" ^^" 
istrator, trustee, guardian or committee shall have finally 
accounted for the estate in his hands, and have given notice in a 
newspa])er of the County, (if there he no newspaper puhlished 
in the County, then in some newspaper having the greatest circu- 
lation therein,) for the space of at least one month, t])at on a day 
certain apjjlication will he made to the said Judge of I'rohate f(tr 
a final discharge : Provided, That in Charleston and Richland 
Counties such publication shall be tri-weekly. No such dis- 
charge shall affect any distributee, legatee, cestui que ti'nst, 
ward or lunatic who has not been made a party to such applica- 
tion, either hy personal service of the notice or by publication in 
the mode provided for absent defendants. 

The provisions of this Section and of Sections 4S, 4'.i and 73 were only in- 
tended to jirescribe the limits of the juri.sdiction of the Probate Courts iu« 
iH'tweon themselves, and not to limit that of the Court of Common Pleas.— 
Jordon v. Mnsffi, 10 S. C, 431. 

_ All pilHCWl- 

80^42. All proceedings in relation to the jtroperty or estate l!l{^,/-;"'",'},\'i,f" 
of any person under guardianship shall he had in the C-ourt ()f {^'"{"uCr.mn 
I'rohate of the Countv in which the guardian was appointed. "."T '!".'!*.'■ .., 



24 CODE OF riVir> PROCEDURE 

A. D. 18!U. 

" --' ^ Sec. 43. -No •Jud;;^ of Probate shall act as such in the settle- 
act wiifn inter- meiit of any estate wherein he is interested as heir or legatee, 

Judges of uii- executor or administrator, or as guardian or trustee of anv per- 
JolnTug County i i.\ j ^ e it i ^ r i- • • 

toBct. son; in every sucli case the .Judge (»f rrohate of any adj<»ining 

Jb., 848. County shall have jurisdiction, and it shall he his duty, upon 
aj)i»lication, to attend at some term of the Court of Probate in 
whicli such case may l>e pending, which shall not interfere with 
the duties in his own County, and hear and determine such case. 

Power ui lui- Sec. 44. The Judge or Clerk of the Probate Court shall 

1870^ XIV. 8 14. 'i'i\<-' l'"wi'r to administer all oaths necessary in the transaction 

of business before the Probate Court, and all oaths required by 

law to be administered to persons executing trusts under the 

appointment of said Court. 

proi)at<> Court Scc. 45. Probate Courts may issue all warrants and processes, 
rants and pro- ill conformity to the rules of law, which may be necessary to 

CCSS6S 

~ih.,S45. compel the attendance of witnesses, or to carry into effect any 
order, sentence or decree of such Courts, or the powers granted 
them by law. 

incasesofcon- Scc. 46. If i^ny person shall refuse or neglect to perform any 

^muto^it.^ lawful order, sentence or decree of a Probate Court, such Court 
ji*., §4G. jj^Q^y issue a warrant, directed to any Sheriff or Constable in the 
State, requiring him to apprehend and imprison such person in 
the common jail of the County, and if there Vje no jail of the 
County, then in the jail of the adjoining County, until he shall 
perform such order, sentence or decree, or be delivered by due 
course of law. 
When deposi- Sec. 47. When a witness whose testimony is necessary to be 

taken and used! uscd before any Probate Court shall reside out of this State, or 
7b., 947. y^j|. yj ^i^g County where said Court is holden, or more than 
thirty miles from the County seat, or, by reason of age or bodily 
infirmity, shall be unable to attend in person, the Court may 
issue a commission to one or more comjietent persons to take the 
testimony of such witness; and depositions taken according to 
the provisions of the law for taking de])ositions to be used on the 
trial of civil causes may be used on the trial of any question 
before the Probate Court where such testimony may be proper. 
Exclusive Sec. 48. When any Probate Court shall have first taken 

after once ac- cogiiizaiiie of the settlement of the estate of a deceasedperson. 

^Jh 848 such Court shall have jurisdiction of the dejiosition a^^ettlo- 

ment of all the personal estate of such deceased person to the 
exclusion of all other Probate Courts. 
Jordan v. Moses, 10 S. C, 431. 



OF SOUTH CAROLINA. 25 

A. D. 1W»I. 

Sec. 49. ''''•' jiiiisdiction asKuincd hy ;iiiv I'robate Court in ^~^ -*^"-^ 
any csise, 80 far as it depencis on tlu; |tlac(! ol nsKicncc or the of rf<orci i.> !«• 
location of the estate, shall not he contested in any suit or pro- court, 
ceedinir whatever, except \u an ajjpeal from the Pi-ohate (y'ourt in 'wo.xiv., stw. 
theori^nnal case, or when the want of jurisdiction appears on 
I he record. 

./onion V. Moses, 10 S. C'., 4'M. 

Sec. 50. \\ lien, hy hiw, a guardian is re(|uii'ed to ))(' ap|)ointed vvhen minor 
of a minor, who is interested as heir or legatee, or representative I^lmniiHiVK-uar- 
of such heir or legatee, in any estate which is in a course of set- wher«''iipMiiu 
dement, such guardian shall be appointed by the Probate Court *^* 
before which such estate is m course of settlement ; but after- 
wards, if the minor shall reside in another County, and is of the 
age of fourteen years, he may choose and have a guardian 
appointed in the County where he shall reside ; and in that case 
the i)owers of the former guardian shall cease, and to such pro- 
ceedings he shall be made a party. In all other cases, guardians 
shall be appointed by the Probate Court of the County where 
the persons for whom the guardian shall be appointed shall 
reside. 

Sec. 51. 'I'he Probate Court by which a guardian shall be Authorimi to 
apjiointed shall have jurisdiction of the estate of the ward, and sett i" accounts 
shall he alone authorized to permit the sale of such estate and °]s7o'xiv"'b5i 
settle such guardian's accounts. 

Jordon v. Moses, 10 S. C, A'.'A. 

Sec. 52. Except as provided in the thirty-fourth Section, the Judges may 

,, . ., . , ,, , ,, ". , . , apiNiiiU times 

Irohate Court m each County sluul ap})Oint such times and and piac<-s for 
places for holding Courts, or for hearing any special matter, as "//,.,« 52 ;iw7ai 
shall be judged most convenient for all persons interested, and ^^•'■*^- 
shall give notice of such times and places to the parties inter- 
ested. 

Sec 53 ''he Probate Court shall be det'iiied open at all times Op«'n ut all 
' ' ,. , . 1 • 1 times forcertaln 

for the transaction of ordinary business which may be necessary, business, 
wiien j)revious notice is not re(piired to l)e given to the persons 
interested. 

Sec. 54. A Probate Court may be adjourned as occasion may Adjournment 

1 1 *i II -1 * * *i *• 4- 111- " "f<'<'>'rt: when 

re(|uii-c ; and wlii'U tlu' .Judge is al>sent at tiie time lor holding a bycierk. 
C0U1I the Clerk may adjourn it. 



/b.,t64. 



26 CODE OF CIVIL PROCEDURE 

A. D. 1804. ' ~~ 

^■' ^'^ Sec. 55. The Circuit Court shall have appellate jurisdiction 

Jurisdiction "of of all matters originally within the jurisdiction of the Probate 

circuit Court 
Ih.,§ 55. 



Court. 



The hearing by the Circuit Court is strictly on appeal, liraitinp the presiding 
Judge to a review of, and judf,nnont on, the evidence taken Ik-Iow, except as 
to questions of fact to be decided by jury under Section i'lO.—Steivurt v. Klvase, 
4 S. C, 44 ; Stark v. Hopson, 2*J S. C, 42 : Ex Parte Whitv, :W S. C, 442. Find- 
ings of fact by Probate Court ought not to be disturbed unless clearly errone- 
ous. — Gunnintj v. Erivin, Vi S. C, :>7. But Circuit Judge may remand the 
cause or any particular issue therein to the Probate Court, with instructions 
to take further testimony and report the same.— Twitty v. Houser, 1 !S. C, 153. 

Jurisdiction of Sgc. 56. The Supreme Court shall have jurisdiction of all 
In probate mat- questions of law arising in the course of the proceedings of the 
-y^-ggg Circuit Court in probate matters, in the same manner as pro- 
vided by law in other cases. 

Supreme Court, on appeals in such matters, may refer an issue of fact to a 
jui-y. — Shaw v. Cunningham, 9 S. C, 271. It will not disturb concurrent find- 
ings of fact by Probate Judge and Circuit Judge.— if/«o/L v. White, 13 S. C, 
o7. An order of Circuit Court, without hearing appeal, remanding the case to 
Probate Judge for further hearing, with leave to take further testimony, is 
appealable.— £'a- Parte White, :« S. C, 442 (Sec. 11). 

Appeal to the Scc. 57. Any persoii interested in any final order, sentence 
be^aklu'^withi^ 01" decree of any Probate Court, and considering himself injured 
flfteendays. ^herebv, may appeal therefrom to the Circuit Court in the same 

I O., 8 0( ; l06'.1, - ^ J. i 

XL, 60, « 13. County, at the stated session next after such appeal. The grounds 

of appeal shall be tiled in the office of the Probate Court, and a 

copy thereof served on the adverse party, within fifteen days 

after notice of the decision ai)pealed from. 

The only parties who can appeal are parties to the cause. — Witte v. Clarke, 
17 S. C, 313. A decree refusing appeal because it was not taken in time is 
appealable. — Henderson v. Wyatt, 8 S. C, 112. 

certiflec) copies Sgc. 58. The person appealing shall procure and file in the 
nied'^'in'^'circuu Circuit Court to which such ai)peal is taken a certified copy of 
99^^ the record of the proceedings appealed from, and of the grounds 

1870 XIV S60 oxi ' o 

' of the appeal filed in the Probate Court, together with the i)roper 
evidence that notice has been given to the adverse party accord- 
ing to law. 
Proceedings Sec. 59. When an appeal, according to law, is taken from any 
^T^ln*^*^^' sentence or decree of the Probate Court, all jiroceedings in pur- 
suance of the order, sentence or decree appealed from shall cease 
until the judgment of the Circuit or Sujireme Court is had ; but 
if the appellant, in writing, waives his appeal before the entry of 
such judgment, proceedings may be had in the Probate Court as 
if no appeal had been taken. 



OF SOUTH CAROLINA. 

A. D. IrtU. 



the C'irouit Court, sucli Court shall' pro.-eod to the trial and coun m«y'm!- 
• lotennination of the question, accordiii<r to the rules of ]aw • ^'^""" ""'"■'"'• 
and if there shall be any question of fa<-t or title to land to be '"'"'''"'•'''"'• 



decided, issue may be joined thereon under the direction of the 
Court, and a trial thereof had by jury. 

"According to the rales of law" constraed to mean "accordinK to the rales 
regiUatmg the hearni-,' of apiH-als."— /i> Parte Wfiitr, 8;{ S. C, 44:>. 

All issues of fact involved in such appeal must be detennined dr novo by the 
Circuit Judge, except such issues as are triable by jury under Section 2T4 and 
except such issues as may be referred to jury under Rule L's of Circuit Court ; 
and It is fatal en-or to so refer such issues without notice to appellant. -.SYt-jc- 
art V. Bleasc, 4 S. C, 87 ; Lurhen v. Wichman, 5 S. C, 411 ; Prater v Whip- 
ple, m S. C, 40 ; Bollins v. Whipper, 17 S. C, 32 ; Ex Parte White, 33 S C 
442 ; E.V Parte Apeler, 35 S. C, 417. 

Sec. 61. If the person appealing from the proceedings of the Appellant neg- 
Probate Court, as provided in this Title, shall neglect to enter S,S';,'X- 
his appeal, the Circuit Court to which such appeal shall be "•uhVast™""'''' 
taken, on motion and producing attested copies of such appeal /b.,§i>i. 
by the adverse party, shall affirm the proceedings appealed from 
and may allow costs against the appellant. 

Sec. 62. The final decision and judgment in cases appealed, Final (iecision 
as hereinbefore provided, shall be certified to the Probate Court i^^'bYtrcourt.'*' 
by the Circuit Court or Supreme Court, as the case may be, and ~ib-^^^- ~ 
the same proceedings shall be had in the Probate Court as 
though .such decision had been made in such Probate Court. 

Sec. 63. N'o Judge of any Probate Court shall be admitted Probate .iiuiee 
to have any voice in judging or determining auv appeal from his vo'i'd in Vter- 
decision, or be permitted to act as attorney or counsel thereon, w{,erm.i;yT™': 

or receive fees as counsel in any matter pending in the Probate ""''"''\. 

Court of which he is Judge: Provided, It shall be lawful for ^'''^^^' 
•Tudges of Probate to practice law in other Courts in such cases 
as are not cognizable in the Courts of Probate. 

Sec. 64. Proceedings in the Court of Probate may l)e com- prococim^s 
menced by. petition to the Judge of Probate for the County to ZLtHrby peul 
which the jurisdiction of the subject matter belongs, or by com- " " 
plaint, briefly setting forth the facts or grounds of the applica- 
tion. A summons .^hall be issued to the defendants in such pro- 
ceedings, wherein the manner of service, time for answering, aiui 
other proceedings relating to the trial, (except trial hy jury.) 
shall conform as nearly as may be to the practice in the Courts 
of Common Pleas as provided in this Code of Procedure. 
3 



tlon. 

;/... ««7.' 



28 CODE OF CIVIL PROCEDURE 

A. D. 1894. ■ " 

""■^ "^ "^ Sec. 65. 't'ho Supreme Court mav, from time to time, make 

SupremeCourt , i .■ n ^- i "i <.- n i • ■ ^i 

to make rules; ruk's ri'«,ailatiiig tile })ractice and coiuiuctiii<.( the business in the 

niissiduers to Courts of Piobate, in all eases not expressly provided for by law ; 

turo, ic, "/or and the County Commissioners of eaeh (bounty shall provide all 

7b To8 books necessary for keeping the reeords of such Court ; also a 

seal and necessary oflice furniture : Pruvidcd, Said furniture 

sliall not exceed in cost the sum of one hundred dollars. 

May punish for Scc. 66. 'i'be Judge may keep order in Court, and punish 

//>., §09. any contempt of his authority in like manner as such contempt 

miglit be punished in the Circuit or Supreme Court. 

Enrollment of Sgc. 67. Anv party ill whose favor an order or decree for the 

decrees. r^^^t -y^ w % ..x ^ 

T878, xVi., 710. payment of money may be made by a Court of Probate may 
cause such order or decree to be enrolled at any time within one 
year after making the same, and for that purpose shall prepare 
and deliver to the .Judge of Probate a brief or abstract, setting 
forth the title of the proceedings wherein such order or decree 
was made, the parties thereto, and the date when the same was 
made ; also the date of the said order and the names of the par- 
ties bound thereby, together with such other particulars as may 
be necessary to identify the said order with the proceedings, and 
to exhibit the grounds for making the same and the operation 
and effect thereof ; and the Judge of Probate shall annex thereto 
the said order or decree, or an exact copy thereof, certified by 
him, together with the time when the same was made and entered ; 
and shall endorse on the record the day of the month and year 
when the brief or abstract was lodged in his office, and shall 
deposit the same in a case in his office with the records pertain- 
ing to the cause. And no order or decree of any Court of Pro- 
bate for the payment of money shall, as to third persons, with- 
out express notice, have any eifect as a lien on the real estate of 
the person intended to be bound thereby but from the day when 
the said brief or abstract shall have l)een delivered to or lodged 
with the said Judge of Probate as aforesaid, and a transcript of 
the docket thereof in the index of money decrees hereinafter 
prescribed has been filed in the office of the Clerk of the Court 
of Common Pleas for the same County and duly entered by said 
Clerk on the calendar of judgments kept in his office. Nor shall 
such order or decree rank as a judgment against the estate of any 
person deceased unless such abstract was duly filed and indexed. 
;md a transcript of the entry in the index filed with the Clerk of 
the Circuit Court for the same County and duly docketed by tlie 
said Clerk on the calendar of judgments of the Court of Com- 
mon Pleas before the death of such deceased person ; except that 



I 



OF SOITII ( AROLINA. 21) 

A.D.18M. 

tlio lien of decrees and nrdors for the payment of money made "^-^^^-^ 
|iri()i- to December twcnticlli, ISTS, shall not l)e allected ; and 
jftor the transcript of the docket in the index of money decrees 
has l)('cn duly entered upon the calendar of judj^moits kept in 
onicc of the Clerk of the Court of Common lMea«, such order or 
dcdot' shall have like force and effect as jud<fments of the Courts 
of Common Pleas : Provided, That such enrollment of any order 
or decree for the payment of money shall not deprive any party 
thereto of the ri^dit to appeal therefrom ; but when notice of 
such appeal shall be duly given, execution upon the said order or 
decree, issued as herein provided, shall be lodged to bind only, 
and shall not be enforced until such appeal shall have been dis- 
missed ; and if such order or decree shall be reversed, set aside, 
or modified on ajipeal, the enrollment thereof shall be amended 
or wholly vacated accordingly. 

Probate Judge cannot ai'rest and imprison an administrator for failnre to 
comply with tenns of a money decree.— Gil Ucidi v. McJunkin, 2 S. C, 442. 

Sec. 68. Every Judge of Probate shall provide and keep in Tokwpimiex 
his office an index of money decrees, in which every enrolled roiied^'^^** '^"' 
order or decree for the payment of money shall be entered, with ^^"^ tvuni. 
the names of every party or estate bound thereby, alphabetically 
arranged, together with the names of the parties plaintiff, and 
(l)esides the title of the package in which the order or decree is 
contained and the number in the package) shall exhibit the 
amount ordered to be paid, the costs (if any), date of enroll- 
ment, date of execution, and date of satisfaction, where satis- 
faction has been entered. Said book shall be of convenient size, 
of durable paper and well bound, and the expense of providing 
the same shall be defrayed by the County Commissioners of the 
res]ioctivo Counties. 

Sec. 69. 'fudges of the Probate Court are authorized and EiniH)\ven'd t« 

, , . .. . , , , , Issue exe<-ut Ions 

em})o\vered to issue executions against property, when such pro- isro. xiv., sri: 

cess is necessary to carry into effect any order, sentence or decree i^r^ xvL.'^Ji! * 

of such Court, or for costs accruing therein. And they may 

issue executions against ])roperty in their respective Counties, to 

enforce decrees from the Probate Courts of other Counties, upon 

a trauscripL of such decree and certificate of enrollment of the 

same being filed in the office of the Probate Court from which 

such execution is to issue, and also in the oflii-e of the Clerk of 

the Court of Common I'lcas of the County in uhich it is to issue. 

But no execution shall be issucil l)y any Judge of Prol)ate to ii,.,:ii. 

enforce the collection of money under any order or decree of a 



<* 

•' 



30 CODE OF CIVIL PROCEDURE 

A. D. 189J. 



'""""^'^^ Court of Probate until an abstract or brief has been prepared 
iind tiled according to the directions of Section G7, and the jjroper 
minute thereof has been entered in the index of money decrees, 
and the proper transcript of such minute has been filed in the 
office of the Clerk of the Circuit Court for the same County, and 
entered upon the calendar of judgments of the Court of Com- 
mon Pleas kept in his office. And when any such execution has 
been duly returned satisfied to the office of the Judge of Probate 
from whence it ii^sued. it shall be the duty of the Judge of such 
Court of Probate to have such satisfaction recorded upon the 
proper transcript in the office of the Clerk of the Circuit Court, 
and entered upon the docket thereof on the calendar of judg- 
ments of the Court of Common Pleas kept in said Clerk's office. 
When no form for a warrant or process is prescribed by statute 
or rules of Court, the Probate Judge shall frame one in con- 
formity to the rules of law and the usual course of proceedings 
in this State. Any Sheriff or Constable in the State shall exe- 
cute the orders or process of Siiid Court, in the same manner as 
the ordei's or process of tiie Circuit or Supreme Courts. 

Such power recognized.— ^/iV/tr v. Stack, 2'A S. C, -i'^iy. It seems that such 
authority to issue executions does not extend to judgments obtained before 
Act ISlS.—Copeland v. Todd, 30 S. C, 410. 

juci>re may Scc. 70. '^he Judge of the Probate Court may commit to the 
t'iTs!*etc!,°t*o Ijunatic Asylum any idiot, lunatic or person non compos mentis, 
h"n"'5„^^^«-'? who, after due examination, may be found to be so furiously mad 
as to render it manifestly dangerous to the peace and safety' of 
the community that such person should be at large ; and also in 
all such other cases provided by law. In all cases the Judge shall 
certify in what place such person resided at the time of the com- 
mitment^ and such certificate shall be conclusive evidence of such 
residence. 



OF SOUTH CAROLINA. 



:n 



COUliTS UF TltlAL J US'J'ICES. 



A. D. IN'JI. 



Skc. 
71. Jurisdiction. 
7-2. ynulKlniMon of sureties. 

73. Jurisdii-tlon of suri'tli\s. 

74. A llowiinco of security. 

75. Property, how tnken when concenlotl 

In hulhllnK or enclosure. 
7ii. Property, how kept. 
77. CMalni of iirojierty by third person. 
7S. No Jurisdiction in certain cases. 
79. Answer of title. 



Sec. 

80. UndertaklnK. 

81. Suit discontinued. 

Si. If undertaking not given. 
83. The same. 
8-1. New action. 
8.'). Costs. 

80. Answer of title as to one cause of ac- 
tion. 

87. Docketing Judgments. 

88. Rules. 



Section 71. 'riiul Justices shall have civil jurisdiction in the 
following actions : 

1. In actions arising on contracts for the recovery of 
money only, if the sum claimed does not exceed one hundred 
dollars. 

2. An action for damages for injury to rights pertaining to 

the person, or the personal or real property, if the damages 

claimed do not exceed one hundred dollars, and in cases of 

l)astardy. 

This does not conflict with Sec. 24, Art. IV., Constitution, conferring like 
jurisdiction on Justices of the Peace ; and gives concurrent jurisdiction with 
the Court of Common Pleas in such action for damages. — State v. Fillcbroum, 
2 S. C, 404 ; Rhodes v. Railroad, (i S. C, ■iS't. Such jurisdiction does not em- 
brace actions for damages claimed above one hundreddoUare.— <Sfcr/a// v. Bolt, 
11 S. C, ^y2'2. Nor for damages indefinite in amount, given by statute. — State 
V. Weeks, 14 S. C, 400. Action by landlord against Constable for proceeds of 
crop in his hands applicable to rent, is such an action for damages for injury 
to rights pertaining to personal property.— /SttWiuan v. Ellison, 20 S. C, 481. 

3. An action for a penalty, fine, or forfeiture, where the 

amount claimed or forfeited does not exceed one hundred doUars. 

A forfeiture of twenty dollars, under a statute, which provides for its re- 
covei-y in a Court of record, cannot be recovered hereunder.— 5^a^' v. Weeks, 
14 S. C, 400. 

4. An action commenced by attachment of property, as now 
l)roYi(]ed ])y statute, if the debt or damages claimed do not exceed 
one hundred dollars. 

5. An action upon bond conditioned for the payment of 

money, not exceeding one hundreil dollars, though the })cnalty 

exceed that sum, the judgment to be given for the sum actually 

duo. Where the payments are to be made by installment.s. an 

a('ti(»ii may be brought for each installment as it becomes duo. 

Trial Justice has jurisdiction of action on bond to rt>cover the amount theivby 
secured and due, which is less than one hundred dolhirs, though the i)eualty 
exceed that amonnt.—Cavender v. Ward, )iS S. C, 470. 



Jurisdiction. 
1870, XIV., i7L 



32 CODE OF CIVIL PEOOEDURE 

A. D. 1804. ~ 



G. An action ujion a surety bond taken by them, where the 
penalty or amount claimed does not exceed cue hundred (i<»l- 
lars. 

7. An action upon a judgment rendered in a Court of a Trial 
Justice or an inferior Court, where such action is not prohibited 
by Section 91. 

8. To take and enter judgment on the confession of a de- 
fendant, where the amount confessed shall not exceed one hun- 
dred dollars, in the manner prescribed by law. 

9. An action for damages, fraud in the sale, purchase or 
exchange of personal property, if the damages claimed do not 
exceed one hundred dollars, 

10. In all matters between landlord and tenant and the posses- 
sion of land, as provided in Chapter LXIV. of the Revised 
Statutes. 

11. An action to recover the possession of personal property 
claimed, the value of which, as stated in the affidavit of the 
jilaintilf, his agent, or attorney, shall not exceed the sum of one 
hundred dollars. 

The plaintiff in such action, at the time of issuing the sum- 
mons, but not afterwards, may claim the immediate delivery of 
such property as hereinafter provided. 

Before any process shall be issued in an action to recover the 
possession of personal property, the plaintiff, his agent or attor- 
ney, shall make proof by affidavit, showing : 

(1.) That the plaintiff is the owner, or entitled to immediate 
possession, of the property claimed, particularly describing the 
same. 

(2.) That such property is wrongfully withheld or detained by 
the defendant. 

(3.) The cause of such detention or withholding thereof, 
according to the best knowledge, information and belief of the 
person making the affidavit. 

(4.) That said personal property has not been taken for any 
tax, fine, or assessment, pursuant to statute, or seized by virtue 
of an execution or attachment against the property of said plain- 
tiff ; or if so seized, that it is exempt from such seizure by statute. 

(5.) The actual value of said personal property. 

This provision allowing such action for recovery of proiwrty less in value 
than one hundred dollars is not in conflict with Sec. 22. Art. IV., Con., which 
limits jurisdiction in actions rx delicto, where damagesdo not exceed one hun- 
dred doUars.-Z>i7/(»n/ v. Samuels, 25 S. C, 318. 



1879, xvn., «. 



OF SOUTH CAIMK.INA. 33 

^ "' A. I). IHM. 

AfHdavit must state that value of the pnuMTty tlocs not exceed one humlrtd ^— . -—^ 
(lolliirs.— iri7/jaHi.«j V. Irh\i, 1(5 S. C, 371. 

But wliothor such stati'ini'ut is necessary in Circuit Court, on iijiiHiil, not 
ducidcd.— /^. 

It is not necessary to allege in summons that plaintiff is entitlefl to the po»- 
scssion t)f the property ; it is sufficient to alloKo tliat tlu^ defendant is in un- 
lawful i)osscssion of i)roperty belonpiny to the phiintifF. — />(7/(//f/ v. Sdmntls 
U.").s. ("., :{is. 

1"^. On rcc'cijjt of sueli alliduvil, iiiid :iu undcu'tukiii','', in writing, 
executed by one or more sufficient sureties, to be approved by tbc 
Trial . Justice l)ef()re wliom such action is commenced, to the 
cllect that tliey are bound in double tlie value of such property 
as stated in said affidavit, for the prosecution of the said action, 
and for tlic return of said ])roperty to the defendant, if return 
thereof l)e adjudged, and for the payment to him of such sum 
as nuiy, for any cause, be recovered against said plaintiff, the 
Trial Justice shall endorse u})on said affidavit a direction to any 
Constable of the County in which said Trial Justice shall reside, 
requiring said Constable to take the property described therein 
from the defendant, and keep the same, to be disposed of accord- 
ing to law ; and the said Trial Justice shall, at the same time, 
issue a summons, with a copy of the undertaking directed to the 
defendant, and requiring him to appear before said Trial Justice 
at a time and place to be therein specilied, and not more than 
twenty days from the date thereof, to answer the complaint of 
said plaintiff ; and the said summons shall contain a notice to 
the defendant that in case he shall fail to appear at the time 
and place therein mentioned the plaintiff will have judgment 
for the possession of the property described in said affidavit, with 
the costs and disbursements of said action. 

Such undertaking not necessary unless the plaintiff claims the immediate 
delivery of the property.— £>i7/arrf v. Samueln, 2.5 S. C, 'MS. 

The summons is fatally defective if it name a day for trial more than 
twenty days after its dixto. —Simmons v. Cochran, 'J!) S. C, 31. 

13. The Constable to wliom said allidavit, eiulorsement ami 
summons shall be delivered shall forthwith take the proi)erty 
described in said affidavit, if he can find the same, and shall 
keep the same in his custody. He shall, thereupon, without 
delay, serve upon said defendant a copy of such affidavit, notice 
and summons, by delivering the same to him personally, if he 
can be round in said County; if not found, to the agent of the 
defendant in whose possession said property shall be found ; if 
neither can be found, l)y leaving such copies at the last or usual 



34 CODE OF CIVIL PROCEDUBE 

A. D. ISOl. 

^' ' i)lace of abode of the defendant, with some person of suitable age 
and discretion. And he sliall forthwith make a return of his 
j)rocecdings tliereon, and tlie manner of serving tlie same, to the 
Trial Justice who issued the said summons. 

14. The defendant may at any time after such service, and at 
least two days before tiie return day of said summons, serve upon 
plaintiff, or upon the Constable who made such service, a notice 
in writing that he excepts to the sureties in said bond or under- 
taking ; and if he fail to do so, all objection thereto shall be 
waived. If such notice be served, the sureties shall justify, or 
the plaintiff give new sureties, on the return day of said sum- 
mons, who shall then appear and justify, or said Trial Justice 
shall order said property delivered to defendant, and shall also 
render judgment for defendant's costs and disbursements. 

15. At any time before the return day of said summons, the 
said defendant may, if he has not excepted to plaintiff's sureties, 
require the return of said property to him upon giving to the 
plaintiff, and filing same with the Trial Justice, a written under- 
taking, with one or more sureties, who shall justify before said 
Trial Justice on the return day of said summons, to the effect 
that they are bound in double the value of said property, as 
stated in plaintiff's affidavit, for the delivery thereof to said 
plaintiff', if such delivery be adjudged, and for the payment to 
him of such sum as may for any cause be recovered against said 
defendant ; and if such return be not required before the return 
day of said summons, the property shall be delivered to said 
plaintiff. 

Qualification Sec. 72. The qualification of sureties must be as follows : 
°i8;rxi v 875 ^- ^'^<^'l^ '^f them must be a resident and housekeeper or free- 
holder within the State. 

2. Each must be worth double the amount of the value of the 
property as stated in the affidavit, exclusive of property exempt 
from execution ; but the Trial Justice, on justification, may 
allow two or more sureties to justify severally in less amounts, if 
the whole justification be equivalent to double the value of the 
said property as specified in said affidavit. 
Justification of Sec. 73. For the purpose of justification the surety or 
Tsicfiv"??? sureties shall attend the Trial Justice at or within the times 
mentioned in subdivisions 14 and 15 of Section Tl, and may be 
examined on oath, on the part of the plaintiff or defendant, as 
the case may be, touching his sufficiency, in such manner as the 



OF SOUTH (AUOLIXA. 35 

■ ~ ~ A.n. 1S9I. 

'I'rial .lustioo, ill his (liscrctioii, may think in-opcr. 'I'hc cxami- '"■^"' ' 
nation sliall Ix' rodiun-d to writing' and suhscrihcd hy the surety, 
if i'('(|uir('d hy the j)artios or either of them. 

Sec. 74. II the Trial Justice find the surety or sureties suflfi- Aiiowamu- <.f 

cient, he shall annex the exaiuinatiou to the luidcrtakin;: and "^"j, j'77 

ondoi'se his allowance thereon, and the Constable shall there- 
ujioii be exonerated I'roin lial)ility. 

Sec. 75. 11" the ])roi)erty, or any part thcreol", lie concealed in i^mperty. how 
a luiildini;- or enclosure, the Constable shall ])ublicly demand its con coal t-ti in 

delivei'y. IT it be not (b'livcrcd, he shall cause the building oreif>sure. 

enclosure to I)e broken o}ien, and take the i)ro])erty into his })os- ^''-*™- 
session ; and, if necessary, he may call to his aid the power of 
bis County. 

Sec. 76. AVhen a Constable sliall have taken property, as in pnjperty, how 
this Title provided, he vshall keep it in a secure place, and deliver '^'^j",^ j-y 
it to the party entitled thereto, upon receiving his lawful fees 
for taking, and his necessary expenses for keeping the same. 

Sec. 77. If the property taken be claimed by any other per- claim of prop- 
son than the defendant or his agent, and such j)erson shall make pereon f 
affidavit of his title thereto, and right to the possession thereof, ^''••^so. 
stating the grounds of such right and title, and serve the same 
upon the Constable, the Constable shall not be bound to keep 
ihe property or deliver it to the plaintilf, unless the plaintiff, 
on demand of him or his agent, shall indemnify the Constable 
against such claim, by an undertaking, executed by two suffi- 
cient sureties, accompanied by their affidavits that they are each 
worth double the value of the property as specified in the affidavit 
of the 2^^aintiff, and are freeholders and householders of the 
County. And no claim to such property by any other person 
than the defendant or his agent shall be valid against the Con- 
stable, unless made as aforesaid ; and notwithstanding such claim, 
when so made, he may retain the ])roperty a reasonable time to 
demand such indemnity. 

The actions so commenced shall l)e tried in all respects as 
other actions are tried in 'J'rial Justices' Courts. 

The judgment for the plaintiff may be for the possession, or 
for the recovery of the possession, or the value thereof in case a 
delivery cannot be had, and of damages for the detention. If 
the property have been delivered to the plaintiff, and thedefend- 
unt claim a return thereof, judgment for the defendant may be 
for a return of the ]u-operty, or the value thereof in case a return 
cunnot be had. and damages for taking and withholding the 



I 



3G CODE OF CIVIL PROCEDURE 

A. D. 181M. ' 

— > ' same. An execution sliall be issued thereon, and if the judg- 
ment be for the delivery of the possession of personal property, 
it shall require the oflficer to deliver the possession of the same, 
particularly describing it, to the party entitled thereto, and may, 
at the same time, require the officer to satisfy any costs or dam- 
ages recovered by the same judgment out of the personal prop- 
erty of the party against whom it was rendered, to be specified 
therein, if a delivery thereof cannot be had. The execution shall 
be returnable within sixty days after its receipt by the officer to 
the Trial Justice who issued the same. 

In all actions for the recovery of the possession of personal 
property, as herein provided, if the property shall not have been 
delivered to plaintiff, or the defendant by answer shall claim a 
return thereof, the Trial Justice or jury shall assess the value 
thereof, and the injury sustained by the prevailing party by rea- 
son of the taking or detention thereof, and the Trial Justice 
shall- render judgment accordingly, with costs and disburse- 
ments. 

If it shall appear by the return of a Constable that he has 
taken the property described in the plaintiff's affidavit, and that 
defendant cannot be found, and has no last place of abode in 
said County, or that no agent of defendant could be found on 
whom service could be made, the Trial Justice may proceed with 
the cause in the same manner as though there had been a per- 
sonal service. 

For the endorsement on said affidavit the Trial Justice shall 

receive an additional fee of twenty-five cents, which shall be 

included in the costs of the suit. 

Such judgment may be given for value of the property, though the demand 
is onlj'for its recoverj' and damages for' its detention.— Joplin v. Carrirr, 11 
S. C. , 327. It cannot be given in case where party is entitled to general dam- 
ages. — lb. But where there are proper allegations, plaintiff may, on apj^eal, 
in Circuit Ckjurt, elect to treat the action as one for damages. — M'ilh'nrn.t v. 
Irby, 1<; S. C, 371. Where verdict is not in proper form, the Trial Justice 
cannot change it ; new trial is the remedy. — DuBose v. Armittrong, 2H S. C, 
290. 

No jurisdiction Sgc. 78. But no Trial Justice shall have cognizance of a civil 

In certain cases. „„4.;^,, 

1S70,XIV..§81; aCUOU 

1873, XV., 49(5. 1. In which the State is a party, excepting for penalties not 

exceeding one hundred dollars. 

2. Nor where the title to real property shall come in question. 

Does not include proceedings to eject tenant.— State v. Fickling, 10 S. C. 
301; State v. Marshatl, 24 S. C, 507. 



OF SOUTH CAROLINA. 37 

■ A. D. 1WI4. 

;!. No)' of a civil iu'lidii for an assaiill. liaMcrv, false imj)risoM- •' 

nieiit, libel, slander,, malicious prosecution, criiniiial conversa- 
tion, or seduction, where tlu; damages claimed exceed one Inin- 
dred dollars. 

Sec. 79. In every action broug^ht in a Court of Trial Justice, Answer of titip. 
\\ here the title to real property shall come in question, the defend- "^"'*i^-'***- 
ant may, either with or without other nuitter of defense, set forth 
in his answer any matter showing that such title will come iji 
• juestion. 8uch answer shall be in writing, signed by the defend- 
ant or his attorney, and delivered to the Trial Justice. The Trial 
Justice shall thereupon countersign the same and deliver it to the 
plaintiff. 

Petition by landlord for ejection of tenant is not such an action. — State v. 
FirkUmj, 10 S. C, :iO ; StcUe v. Marsliall, 24 S. C, 507. 

Sec. 80. At the time of answering the defendant shall deliver _ uudertaking. 
to the Trial Justice a written undertaking, executed by at least i^^.^iv., ess. 
one sufficient surety and approved by the Trial Justice, to the 
effect that if the plaintiff shall, within twenty days thereafter, 
deposit with the Trial Justice a summons and complaint in an 
action in the Circuit Court for the same cause, the defendant 
will, within twenty days after such deposit, give an admission in 
writing of the service thereof. 

AVhere the defendant was arrested in the action before the 
Trial Justice, the undertaking shall further provide that he will 
at all times render himself amenable to the process of the Court 
during the pending of the action, and to such as may be issued 
to enforce the judgment therein. In case of failure to comply 
with the undertaking, the surety shall be liable not exceeding one 
hundred dollars. 

Sec. 81. Upon the delivery of the undertaking to the Trial sun discon- 

Justice, the action before him shall be discontinued, and each "'y',^''*g^ 

party shall pay his own costs. The costs so paid by either party 
shall be allowed to him if he recover costs in the action to be 
brought for the same cause in the Circuit Court. If no such 
action be brought within thirty days after the delivery of the 
undertaking, the defendant's costs before the Trial Justice may 
be rccovci-ed of the plaintiff. 

Sec. 82. If the uudertaking be not delivered to tlio Trial u umicrtaUnK 

.Justice, he shall have jurisdiction of the cause and shall i)roceed "°jb.,*j^, 

therein ; and tlio defendant shall be precluded in his defense 
from drawing the title in question. 

Sec. 83. If, however, it appear on the trial from the jilain- Tho snmo. 
t ill's own showing that tlie title to real property is in question, ^'•••«*'- 



38 CODE OF CIVIL PROCEDURE 

A. D. 18M. 

^'" Y ' aiul such title shall be disputed by the defendant, tiie Trial Jus- 
tice shall dismiss the action and render judgment against the 
plaintilT for the costs. 

New action. Sec. 84. When a suit before a Trial Justice shall be discon- 

ib., 88<. tinned by the delivery of an answer and undertaking, as provided 
in Sections 79, 80 and 81, the plaintiff may prosecute an action 
for the same cause in the Circuit Court, and shall complain for 
the same cause of action only on which he relied before the Trial 
Justice ; and the answer of the defendant shall set up the same 
defense only which he made before the Trial Justice. 

_Co8te^ Sec. 85. If the judgment in the Circuit Court be for the 

"' ijlaiutiti', he shall recover costs; if it be for the defendant, he 

shall recover costs, except that upon a verdict he shall pay costs 

to the plaintifp, unless the Judge certify that the title to real 

property came in question on the trial. 

Answer of title Scc. 86. If in an action before a Trial Justice the plaintiff 

of^action. have several causes of action, to one of which the defense of title 

ift., §89. ^Q Yeal property shall be interposed, and as to such cause the 
defendant shall deliver an answer and undertaking, as provided 
in Sections 79 and 80, the Trial Justice shall discontinue the pro- 
ceedings as to that cause, and the plaintiff may commence another 
action therefor in the Circuit Court. As to the other causes of 
action, the Trial Justice may continue his proceedings. 

Docketing Sec. 87. A Trial Justice, on the demand of a party in whose 
IsToTxiv.isoo; favor he shall have rendered a judgment, shall give a transcript 
thereof, which may be filed and docketed in the ofKce of the 
Clerk of the Circuit Court of the County where the judgment 
was rendered. The time of the receipt of the transcript by the 
Clerk shall be noted thereon and entered in the abstracts of 
judgments, and from that time the judgment shall be a judg- 
ment of the Circuit Court ; but no sale shall l)e made under any 
1S37, XIX., 830. execution issued upon such judgment in the Circuit Court until 
the time for appealing from the judgment in the Trial Justice 
Court has expired, nor pending such appeal. If the judgment 
is set aside in the Trial Justice Court, it shall have the effect of 
setting aside the judgment filed and docketed in the Circuit 
Court. The filing and docketing such transcript in the Circuit 
Court shall not affect the right of the Trial Justice to grant a 
new trial. A certified transcript of such judgment may be filed 
and docketed in the Clerk's office of any other County, and with 
like effect, in every respect, as in the County where the judg- 
ment was rendered. 



OF SOUTH CAROLINA. 39 

A. D. 1891. 

Such transcript of a valid judsment only of the Trial Justice can be so flle<l ; "— ^v-™— ' 
if judpmpnt is null, the tranpcript iH null. — /;f/;vo»i v. Dmt, 17 S. C, 75. And 
the^ transcript mii.st show I'vcrythin^ neccssarj- to give juriwliction to the 
Trial Jnsticp, to make the judt^incut valid. — 7;.(i.s(»n v. ('nrn'ir, l's K. C. ll'.t. 

Such tranacrii)t is propfrly Ripiu-d by lui authorized dork of thf TrijU Juh- 
tice. — lirnwH v. liitltz, 15 S. ('., 4!t0. lYial Justice hafl no power to vacate the 
jud{?rat)nt after the transcrii)t luus been filed in the Circuit (.'ourt.— //». ; Ltnc- 
rencr v. Isrnr, 2~ S. ('., 244. "When tran.scrijit tiled the judj^nnent becomes the 
judgment of the Court of Common Pleas.— IUkkkI v. J'atriih, :i~ S. C, 517. 

Sec. 88. The folloM'ing rules shall be observed in the Courts ""'•*«• 

of 1 rial .iustiees : 

!. The pleadings in the Courts arc : (1.) The complaint by 
the i)laintiff. (2.) The answer by the defendant. 

2. The pleadings may be oral or in writing. If oral, the sub- 
stance of them shall be entered by the Trial Justice in his 
docket ; if in writing, they shall bellied by him, and a reference 
to them shall be made in the docket. 

Written acceptance by the defendant will cure the failure of Trial Justice 
to sign the original summons.— i^rrjson v. Carrier, 2S S. C, Hit. 

Defendixnt may orally answer a written complaint.— Williams v. Irhy, 15 
S. C, 4W. 

3. The complaint shall state, in a plain and direct manner, 
facts constituting the cause of action. 

4. The answer may contain a denial of the complaint, or any 

part thereof, and also a notice, in a plain and direct maimer, of 

any facts constituting a defense or counter-claim. 

Such notice of counter-claim must be given ; without it proof of the counter- 
claim cannot be introduced, under general denial.— Will iains v. Irbij, 15 S. C. 
45S. Demand originating in contract cannot be pleaded as counter-claim in 
action for i-ecovery of a specific chattel.—/ b. 

5. Pleadings are not required to be in any particular form, but 
must be such as to enable a person of common undci-standing to 
know what is intended. 

Dillard v. Samupl.-i, 25 S. C, S18. 

An answer that alleges misrepresentation, fraud and duress need not set out 
the facts and circumstances thereof. — Riggs v. Wilson, 30 S. C, 172. 

G. Either party may demur to a pleading of his adversary, or 

to any part thereof, when it is not sutticiently explicit to enable 

him to understand it, or it contains no cause of action or dofen^i-, 

although it be taken as true. 

7. If the Court deem the objection well founded, it shall 
order the pleadiug to be amended : and if the party refuse to 
amend, the defective pleading shall be disregarded. 

8. In any action on contract where a defendant does not appear ~im8~xx~6S" 
and answer, the plaintill" may lile ju-oof of the service of the 



40 CODE OF CIVIL PROCEDURE 

A. D. 1391. ~~~~~ 

""" ^ ~^ summons and complaint, or of tlie summons, on one or more of 
the defendants, and that no answer or demurrer has been served 
upon him. When the action is f(»r tlie recovery of money only, 
ju(l<;iiicnt may be given for the plaintilf by default if the demand 
be liquidated ; and if unliquidated, and the plaintitf itemize his 
account and append thereto an affidavit that it is true and cor- 
rect and no part of the sum sued for has been paid by discount 
or otherwise, and a copy be served with the summons on the 
defendant, and the defendant shall neither answer or demur, the 
plaintitf shall have judgment for the sum sued for, as in the 
case of liquidated demands. In all other cases Mhere the defend- 
ant fails to appear and answer, the plaintiff cannot recover with- 
out proving his case. 

The last clause applies to cases by default.— Harron v. Dent, IT S. C, 75. 

And the fact of indorsements upon the summons that there was a hearing 
and examination of witnesses is not sufficient to show that defendant appeared 
and defended.— /b. 

Nor can such showing be made by parol testimony.— 76. 

9. In an action or defense founded upon an account, or an 

instrument for the payment of money only, it shall be sufficient 

for a party to deliver the account or instrument to the Court, 

and to state that there is due to him thereon, from the adverse 

party, a specified sum, Avhich he claims to recover or set off. 

Does not nullify last clause of preceding subdivisions ; does not apply to case 
of default. — Barron v. Dent, 17 S. C, 75. 

10. A variance between the proof on the trial and the allega- 
tions in a pleading shall be di.sregarded, as immaterial, unless 
the Court shall be satisfied that the adverse party has been misled 
to his prejudice thereby. 

11. The pleadings may be amended at any time before the 
trial, or during the trial, or upon appeal, when, by such amend- 
ment, substantial justice will be promoted. If the amendment 
be made after the joining of the issue, and it be made to aj^pear 
to the satisfaction of the Court, by oath, that an adjournment is 
necessary to the adverse party in consequence of such amend- 
ment, an adjournment shall be granted. The Court may also, 
in its discretion, require, as a condition of an amendment, the 
payment of costs to the adverse party. 

I8i7, XIX., 83.'. 12. Execution may be issued on a judgment heretofore or 
hereafter rendered in Trial Justices' Courts at any time after 
the rendering of such judgment, and within three years jifter the 
rendition thereof, and shall be returnable sixty days from date 
of the same, but no sale thereunder shall be made until after the 



OF SOUTH CAROLINA. 41 

A. D. IWM. 

time I'di' :ii)|)(';iliiii; has expired, imr |K'n(liii^ siicli appeal : J'ro- ""^^r^"^ 
vidcd, 'I'liat ill cases for the claiiii and delivery of pers^onal prop- 
erty where hitiid for the projjerty eiainied has becMi proj)erly ;^iven 
liy either party, the status of such proj)erty shall not he changed 
until after tlie expiration of time for appealing has expired, or 
until such appeal lias terminated. 

In issiiiuK execution Trial Justice acts judicially and is not liable in damages 
therefor unless it was done willfully aud corruptly.— J/cC'a// v. Vohrn, lO S. 
C, AAr> ■ Ahrmns v. Carlisle, IS S. C, 242. 

( 'an Trial Justice issue execiition within the five days allowed for motion 
for new trial !-Abrams v. Carlisle, IS S. C, 242. 

13. If the judgment be docketed with the Clerk of the Circuit 
Court, the execution shall be issued by him to the Sheriff of the 
County, and have the same effect, aud be executed in the same 
inanner, as other executions aud Judgments of the Circuit Court. 

Referred to.— Lairrcncr v. Iscar, 27 S. C, 244. 

Such execution may be tested by the Clerk of said Court. — Bragg v. Thomp- 
son, V.I S. C, .572. 

14. The Court ma}', at the joining of the issue, require either 
party, at the request of the other, at that or some other specified 
time, to exhibit his account, or state the nature thereof as far as 
may be iu his power, and, iu case of his default, preclude him 
from giving evidence of such parts thereof as shall not have been 
so exhibited or stated. 

15. The provisions of this Code of Procedure, respecting forms 
of actions, parties to actions, the rules of evidence, the times of 
commencing actions, and the service of process upon corjiora- 
tions, shall apply to these Courts. 

The defendant may, on the return of process, and before 
answering, make an offer in Avriting to allow judgment to be taken 
against him for an amount, to be stated iu such offer, with costs. 
The plaintiff shall thereupon, and before any other proceedings 
shall be had in the action, determine whether he will accept or 
reject such offer. If he accept the offer, and give notice thereof, 
in writing, the Trial Justice shall file the offer and the accept- 
ance thereof, and render judgment accordingly. If notice of 
acceptance be not given, and if the plaintiff" fail to obtain judg- 
ment for a greater amount, exclusive of costs, than has been 
specified in the offer, he shall not recover costs, but shall ])ay to 
the defendant his costs accruing subsequent to the offer. 

It is eiTor in Trial Justice to refuse to allow defendant's counsel to cross- 
examine pcnerally plaintitT's witness.— /^i7/<(?</ v. ^'hoikc/s, 2."> S. C, IjIS. 

Plaintiff is liable for tdl costs of the ca.se, subsequent to defendant's offer, if 
he refuse to accept it, and recover \ess.—Williford v. iladsden, 27 S. C, 87. 



43 CODE OF CIVIL PROCEDURE 

A. D. 1804. 

"■" -^ ' 10. Where twenty-five or more dollars is demanded, the com- 

1873 XV 8CU • " 

iwii.xx.riiia! plaint shall be served on the defendant twenty days, and where 

less than that sum is demanded, five days, })efore the day therein 

lixed for trial : J'rori(/e(L That if the plaintilf shall make out 

that he is apprehensive of losing his debt by such delay, and the 

Trial Justice considers that there is good reason therefor (the 

ground of sucli ai)prt'licnsion being set forth in an aHidavit, and 

served with a copy of the complaint), he may make such process 

returnable in such time as the justice of the case may rerjuire. 

Defendant may waive the twenty days' notice ; and if he goes to trial on less 
notice, without objection, he is bound by the judgment. — Benson v. Carrier, 
2S S. C, 119. As to the p^o^^so, applied.— C'aroide?- v. Ward, 'J8 S. C, 470. 

1S76, XVI , CO 1^' ^^^y Trial Justice Court of this State shall have power to 
grant a new trial in any case tried in the said Court for reasons 
for which new trials have usually been granted in the Courts of 
law of this State ; but the case tried shall only be heard and 
tried anew by the Trial Justice before whom the case was first 
tried. 

A motion for a new trial is not required as a condition precedent to an ap- 
peal. — Minnivk v. Fort, lo S. C, 21.5. 

He cannot so relieve against his own judgments on grounds of mistake, in- 
advertence, sur|)rise or neglect ; that can only be done by appeal.—/?*. So as 
to judgments by default, that may be satisfactorily excused. — Lawrence v. 
Isear, 27 S. C, 244. New trial will not be gi-anted where irrelevant testimony 
is received against objection, which could not have affected the verdict. — 
Bir/gs v. Wilson, SO S. C, 172. Appeal lies to the Circuit Court from an order 
granting a new trial. — Bed/earn v. Douglass, 3.5 S. C, 569. 

7^^ 18. Xo motion for a new trial shall be heard unless made 

within five days from the rendering of the judgment ; but the 

right of appeal from the judgment shall exist for five days after 

the refusal of a motion for a new trial. 

Trial Justice cannot hear such motion unless made within the five days.— 
Doty v. Duvall, 19 S. C, 143. 

"188 7 xix 7 87" ^^' ^Vhcnever either party to a civil action which is to be tried 

before a Trial Justice shall file with the Trial Justice isi^uingthe 

papers an aflSdavit to the effect that he does not believe he can 

VyjT' obtain a fair trial before the Trial Justice, the papers shall be 

CtiJ- turned over to the nearest Trial Justice of the County., who shall 

I », |«\ ^jv proceed to try the case as if he had issued the papers : Provided, 

\, Such affidavit shall set forth the grounds of such belief, that 

ll^^lir ' 1 »J(*»> *^^'° days' notice of the application for such transfer shall be 

\A/ irsl- ^ given to the adverse party, and that but one such transfer shall 

Qj/ ^^' lO^ be allowed each party in any case. This provision shall not apply 

to trials before the Judicial Trial Justice of the city of Charleston. 



PART II 

CIVIL ACTIONS. 



TiTLK I. —TJtvir Form. 

TiTLK II. — TiiiH' uf donnncnriii;!. 

TiTLi<: \\\.— Parties. 

Title IN.— Place of Trial. 

'I'lTLK V. — Manner of Commencitu). 

Title W.—Pleadimjs. 

Title VII. — Provisional Hctncdics. 

Title \'111. — Trial and Judgment. 

Title IX. — Execution of the Judyinent. 

Title X.— Costs. 

Title XI. — Appeals. 

Title XII. — Miscellancoas Proceedings. 

Title XIII. — Actions in Particular Cases. 

Title XIV. — Prooisions Rdatinij to Existing Suits. 

Title XV. — General Provisions. 



This Part, Jis to appeals, does not apply iu criminal cases ; they are gov- 
erned l)y the old practice before the Cude.— State v. Pitts, 12 S. C, 18(). It ap- 
plies only to C'ourts of Common Pleas, except when express reference is made 
to inferior Courts. — Doti/v. Dvrall, 1!) S. C, 148. Nor does it apply to pro- 
ceedings by prohibition or mandamus.— S. C. Soviet ij v. G'enicy, 8 S. C, 5o. 



TITLK T. 

FORM OF CIVIL ACTIONS. 



Sec. 

8!i. One foriii nf jwtiim esUiWLslii-il. 
!M). I'lirtlcs, liow (li«lguaU'(1. 



SKC. 

'.M. Arliiilis OH jiKljrini'llt.s. 

'.to. Fclirni'd IS.SUCS iidl ulll)W(^(l. 



Section 89. There sluill l)c ill tliis State hut (tue ti)rm of rime f«r oom- 

aitiiiii for till' ciiforcemeiit oi' protection of })rivate rii,'iits and ['|"',',s| jt"*' ""^ 

I lie redress of |iii\at(' wrongs, which shall he (Iciioniinalcd a civil 

action. 

No action lii's unless a cause of action exists wliicli would formerly have 
maintained an action at law nr a bill in ('(juity. — Si)iitli<rii Mini. Co. v. I'rir, 
5S. c.,r>. 

Whether legal or e(iuital)le, such rights nuist alike be enforced or protecte<l 
by the same form of action. — Parker v. ./aeolis^ 14 S. C, ll'J; ClKijutian v. 

4 



44 CODE OF Civil. IMfoi KDl'IJE 

A. D. 18M. " '— 

^- — Y ' Lipscomb, 18 S. C, 222 ; Scaife v. Thompson, 15 S. C, 337. No change is 

made between \epal and equitable causes of action. — Chapman v. Lipscomb, 
18 S. C, 222 ; SuUiran v. Sulliran, 2<) S. C, 5(W. But while cauKes of action 
are distinct from remedies, they are enforcible bj' the one form of remedy. — 
Emon/ V. Hazard Powder Co., 22 S. C, 47ti. 

Parties: how Sec. 90. In such action the party complaining shall be known 
"//f^soa ~ '^*' ^^^^' ])laijitiff, and the adverse party as the defendant. 
Actions on Sgc. 91. Xo action shall be brought upon a judgment ren- 
^"/h^fi^tM^ — dered in any Court in this State, except a Court of Trial Justice, 
between the same parties, without leave of the Court, for good 
cause shown, on notice to the adverse party ; and no action on a 
judgment rendered by a Trial Justice shall be brought in the 
same County within five years after its rendition, except in case 
of his death, resignation, incapacity to act, or removal from the 
County, or that the process was not personally served on the 
defendant, or on all the defendants, or in case of the death of 
some of the parties, or where the docket or record of such judg- 
ment is or shall have been lost or destroyed. 
Feigned issues Sgc. 92. Feigned issues shall not be allowed, and. instead 
IsTo^^rvTiss^ thereof, or when a question of fact, not put in issue by the plead- 
ings, is to be tried by a jury, an order for the trial may be made, 
stating distinctly and plainly the question of fact to be tried ; 
and such order shall be the only authority necessary for a trial. 



TITLE 11. 

TIME OF COMMENCING CIVIL ACTIONS. 



Chapter I. — Acfio)is Goierallt/. 

Chapter II. — For ike Recovery of Real Propcrtij. 

Chapter III. — Other than for the Recovery of Real Property. 

Chapter IV. — General Provisions. 



CHAPTER I. 

Actions Generally. 



SKC. 

04. Time for commencing actions, Ac. 



8BC. 

93. Limitation not to apply wtiere action 
comriicncod or rljrht of action accrued. 
Limitation not 
to apply where , . . i • m- i i .i 

action com- ScctlOIl 93. 1 lic i>rovisions ol this litle shall not extend to 
menced, or. , , , , , . 

right of action actions already commenced, or to cases where the right of action 

ftccniod 

~jiZ,iw, Ii^ already accrued ; but the statutes then in force shall be api)li- 



I 



Ol-' SoCril CAl.'nLINA. 




(!iil)le to such (tiisos, iicfonliiiMf ti> llic sulijiit of Mn' jMrMfni .-md 
witliitut I'l'gard to tlic r<iriii. 

SIkiikI v. Gai/r, '.) S. C, iss ; Iluyrs v. Clinhsiiilis, '.) S. C, J.V) ; Unitlon v. 
(litji, \2 S. C, 42 ; Holt V. IhiwIcinK, Hi H. C, ;ilO ; Nirhols v. nriyijs, IS S. C, 
47.! ; Sfdfi- V. rini'knci/, '2-^ S. (J., 4S4 ; Colnin v. I'hillips/Si H. C, 22^ ; lithhopf 
V. Kufilnnif, :!0 S. (\, 2;M ; L///<'.s v. lioarh, ;i() H. (;., 21)1. 

Sec. 94. ('ivil Mctions ciin only l»i' commeiiced within the Time for com- 
pcriotls jnescrihi'd in this 'I'itle, iiTtiM- the cause of action shall uons,*^ Ac?.'' "*^" 
have accrued, except where, in special cases, a ditfercnt liniita- ^''-i^- 
turn is prescribed by statute and in the cases mentioned in Sec- 
tion 93. I5ut the objection that the action was not commenced 
within the time limited can only be taken by answer. 

Tho statute cannot avail unless so pleaded.— Confi/ v. Timmons, 10 S. C, 
:{7S ; Cnrrfon v. Wcstfu-ld, :12 S. C, 5.S3 ; Moon- v. Smith, 29 S. C, 2.>1 ; For/- 
yrfl,- V. (l<iffn>'ii, ;« S. C, :»:}. 

Defi'udaut failing to so object by answer is barred from making that defense 
on trial. — Jonra v. Massey, U S. C, 870. 

But such defense does not preclude other defenses, even though inconsist- 
ent. — Colirs V. Fraser, 5 S. C, 355. 

Stat<?ment of reasons which actuated defendant to plead such limitation 
proiwrly stricken out of answer as irrelevant.— Mc/to/s v. Briggs 18 S. C, 
47.S. 



CHAPTER II. 

For the Recovery of Real Property. 

Sec. I Sec. 

!I5. Wlinn the SUite will not sue. 102. Occuputiou under written in.strument, 

%. When action cannot be hroiiKlit by &c. 

gnintec from the Stale. 103. Adveree possession under written in- 

'.i~. When action l)y tlie State or tlioir struinent, <Sc. ' . 

giiint<.'es to be brought wittiin ten 101. Premises actually occupied held ad- 

yeiirs. versely. 

118. Seizin within ten ycuii-s, when neces- 105. Adverse possession under claim of 

sary. Plaintiff limited to two actions. title not written. 

O'.l. Seizin within ten yeai^s, when neces- lOU. Uelation of landlord and tenant, a.s 

sary, in action or defense foundeil alTecting adverse possession. 

on title, &c. 107. Descent cast; effect of. 

KKl. Action after enlrv or ri^-ht of entry. lOK. Pei'sons under disability. 

101. Piissessiiiii, when picsuiiied. ocriipa- lo*.'. A fl<'r forty yeai-s, no action whatever 

tiiiii, wlien deemed under leKal title. allowed. 

Section 95. 'L'he State will not sue ;iny jjcrsori for or in when the 
respect to any real property, or the issues or profits thereof, by J^',"'/' "'" ""^ 
rciison of the right or title of the State to the same, unless — i87o,xiv., ow. 

1. Such right or title shall have accrued within twenty years - ^^^^ x \7m. 
before any action or other proceeding for the same shall be com- 
menced ; or unless 



I 



46 CODE OF CIVIL PUOCEDUKB 

A. D. IWM. " - 



//.. 



2. The Stiite. or those riom whom it chiimH, shall have received 
the rents hiuI ])rofits of such real property, or of some part 
thereof, witliin the space of twenty years. 

Does not oi>erate retrowpoctively. — Sfiitr v. I'inckiwy, '^^ S. (!., 4H4. Until 
this Section was jMussed in 1S70, the doctrine of nullum tnnpus pntvailed in 
this State.— .S7(>^' v. P. (1. Co., )i:i S. C, rjU.— A« to itK effoct, it remains to !)<■ 
construed.— .S7(«^/' v. IHrickney, 22 is. C, 484. 

wiuni action Scc. 96. No action shall be bronght for or in resjied to n-al 

bruuRi'it by property by any person clainiinjr by virtue of letters patent or 

fhesuue.''^"'" grants from the State, unless the same might have been com- 

1870, XIV., »!«). nionced by the State as herein specified in case such patent or 

grant had not been issued or made. 

When action Ssc. 97. When letters patent or grants of real })roperty shall 

their (iriWcs have l)een issued or made by the State, and the same shall be 

w'ithinTen declared void by the determination of a competent Court, ren- 

'ib^ §100- 1873 dsrcd upon an allegation of a fraudulent suggestion, or conceal- 

XV., 49b. ment, or forfeiture, or mistake, or ignorance of a material fact, 

or wrongful detaining, or defective title, in such case an action 

for the recovery of the premises so conveyed may be brought 

either by the State, or by any subsequent patentee or grantee of 

the premises, his heirs or assigns, within ten years after such 

deteriniiiation was made, but not after that period. 

Seizin within Sgc. 98. 1. No actiou for the recovery of real property, or 

nece^s^sary; for the rccovcry of the possession thereof, shall be maintained, 

to' tvvo actions^ unless it appear that the plaintiff, his ancestor, predecessor, or 

gioi*^-'i8r3^v" gi'antor, was seized or possessed of the premises in question 

^^8- within ten years before the commencement of such action. 

2. The plaintiff in all actions for recovery of real jn-operty, or 
the recovery of the possession thereof, is hereby limited to two 
actions for the same, and no more : Provided, That the costs of 
the first action be first paid, and the second action be brought 
within two years from the rendition of the verdict or judgment 
in the first action, or from the granting of a nonsuit or discon- 
tinuance therein. 

Action against railroad company for djimases for grading and trespass on 
lands, and to enjoin further appropriation thereof, is not snih an action.— 
Tomijkinsv. /,'. li. Co., :!0 S. C, 479. 

Seizin within Sec. 99. No cause of actiou or defense to an action founded 

ten years, when i-.i. i i. i. i. • t. r .\ 

necessary In ac- upon ii title to real pro])erty or to rents or services out of the 

f on ndert on same shall be ell'ectual, unless it a})pear that the person })rosi'- 

1*8 7 XIV cuting the action or making the defense, or under whose title 

406^' ^^'^' ^^■' ^^^^ action is prosecuted or the defense is made, or the ancestor, 

predecessor or grantor of such person, was seized or possessed of 



1879, XVII., 79. 



()V Sol'I'll CAI.'oLINA. 4t 

A. I). IWtl. 

I he prciiiiscs ill (jiic'st ii)ii witliiii Icii vmrs htttort- llic i^oniniiltiii^r ^■" v^-^ 
n| t lie act ill respect ((» wliidi siidi ad ion is prosecuted or defense 

made. 

Sec. 100. X'M'iil i-\ii|i(iiin'al estate shall lie (leeiiietl siillicieiit Ar-tion iifi.-r 
I ■ , I ■ ' I , ■ , , , , ••iitry, or rlKlit 

or valid as a elaiiii. iinless an action l»e coiiiineiiced tliereii poll of entry. 

witliin one year after the iiialsiiii,' of such entry, iuid within ten mur.^jKru'xv" 

yi'ais fioin th(> time when the riiilit to make such entry descended ''■'"• 

or arcnie(|. 

Sec. 101. 1" <'\«'i'N' action for the recovery of real proix-rtvor posmo s s i o n. 

1 1-1 1 1- 1 • 1 1 • 1 1 wlifii pri'-suni- 

llic [)ossessioii tlicreol, the [it'i'soii estalilishiiig ji legiil title to tlie <''i; Kfcupation. 

1 11 1 1 I 1 1 ii - ... when (l('«-tiii*<i 

premises shall be presumed to have been possessed thereof witiiin under leffaititi.- 
the time required by law ; and the occupation of such premisen gii4".'i«;3^\'v;; 
hy any other person shall be deemed to have been under and in '*'"'■ 
subordination to the legal title, unless it appear that such prem- 
ises have been held and possessed adversely to such legal title for 
ten years before the commencement of such action. 

Such adverse possession p:ives no right until the expiration of the ten years. 
—Ellni V. Kllni, Hi S. C, 182. 

There can he no adverse possf^ssion by purchaser under contract to purcba.se 
the land against vendor until h(> haw paid the purchase money. — Blackwrll v. 
liyan, 2[ S. C, 112. Nor by inircha.ser from mortgagor, with notice of the 
mortgage, against the moi-tgagee.— M»'<o>i v. Lewis, 8 S. C, 2n ; Clark v. 
Smith, V.i S. C, •'isr) ; Lynch v. Hancock, 14 S. C, (Mi. But there can be by pur- 
chawer against a judgment. — (>'o/f/.sHu7/t v. Jacobs, 14 S. C, fU4. There can be 
no adveixe possession again-st any of the co-tenants, unless it is against all. — 
Scaifc V. Thompson, 1.5 S. C, 8:]7. 

But successive purchasers cannot tack possessions so a.s to give such title. — 
Fegucti v. Warlen, 14 S. C, ISO ; Ellen v. Ellen, 10 S. C, 182. 

There can be no adverse possession where no trespass is committed against 
owner.— Mf.s.svi/ v. Duren, 8 S. C, ;^ ; Mosclij v. Ilaxkiuson, 25 S. C, 51'.l. 

Adverse po.ssession under Act 1871 to rii)en into title must ran twenty yeai*s, 
and is not limited to ten j'ears' duration, as fixed in this Section by am(>ud- 
ment of \s~;i. — lichkopf v. Kuhland, 'M S. C, 2;;4 ; Li/tes v. Hoach, :!0 S. C, 
2<.tl. But adverse po.ssession, begun in 1S>?;5, is controlled by this Section, then 
in force. — Johnson v. Cobb, 20 S. C, .■172. 

Sec. 102. ^^ believer it. shall ajjjiear that the occupant, or those occupation un- 
iiiider whiun he claims, entered into the [lossession oi ])remises sn-unu-nt, Ac. 
iiihUt claim of titli", exclusive of any other riizht. foimdiiii;- such .,'.'* ",l!>^ ^Jv*' 
claim u})on a written instrument, as being a conveyanee of the ■••'"• 
premises in question, or ii[)on the decree or judgment of a com- 
petent Court, and that there has been a contiiiiied occupation 
and possession of the i)remises iiieluded in such instrument, 
decree or judgment, or of some part of such premises, uiuh'r such 
claim for ten years, the premises so included shall be deemed to 
have been held adversely ; except that where the j)remises so 
included consist of a tract divided into lots, the possession of one 



48 CODE OF CIVIL IMJocKOrUK 

A. D. 1H»1. ' ~ " ' 

'"" — V ' lot shall nut bo deemed a possession of any <»tlu'r lot of tlit' same 

tract. 

Occupancy of one of two adjoining parcels of land imludwl within lines of 
plat held as c«jlor of title does not c/jnfer title by advers«- iMtssesHiun of -the 
other parcel. — jWri.v.vf J/ v. iJiiren, '.i S. C, :J4. 

Adverse pos- Sec. 103. ^'<>r tl)e purpose of constituting an adverse posses- 
wrii'ten "instru- sio"> 'jj ^nj porson claiming a title founded upon a written 
meat, Ac. — instrument or a judji^ment or decree, land shall be deemi-d to 
1870, XIV., §100. ,1 •,•,..,,• 

Jiave been possessed and occupied in tlie loJIowmg cases : 

1. Where it has been usually cultivated or improved. 

2. Wliere it has been protected by a substantial enclosure. 

3. Where, although not enclosed, it has been used for the sup- 
ply of fuel or of fencing timber, for the purposes of husbandry, 
or the ordinary use of the occupant, 

4. Where a known farm or a single lot has been partly improved , 
the portion of such farm or lot that may have been left not cleared 
or not enclosed, according to the usual course and custom of the 
adjoining country, shall be deemed to have been occupied for the 
same length of time as the part improved and cultivated. 

Premises a c- Sgc. 104. Where it shall appear that there has been an actual 
hewidverse^iy^ Continued occupation of premises, under a claim of title, exclu- 
iSToTxrv., iiw. sive of any other right, but not founded upon a written instru- 
ment or a judgment or decree, the premises so actually occupied, 
and no other, shall be deemed to have been held adversely. 
Adverse pos- ScC. 105. l^or the purpose of constituting an adverse posses- 
dSm°o"°ute sion by a person claiming title not founded upon a written instru- 

not written^ — jjient or a judgment or decree, land shall be deemed to have been 
ib.,%im. -, . , p ,1 . , 

possessed in the following cases only : 

1. Where it has been protected by a substantial enclosure. 

2. Where it has been usually cultivated or improved. 
Relation of Sgc. 106. Whenever the relation of landlord and tenant shall 

tenaiit^aff«;u ^^^^'^ existed between any persons, the possession of the tenant 

'"K8^jJ^e'^<' pos- shall be deemed the possession of the landlord until the exj)ira- 

T/<T,8i6itri8ri; tion of ten years from the termination of the tenancy ; or. where 

there has been no written lease, until the expiration of ten yeare 

from the time of refusal to pay rent, notwithstanding that such 

tenant may have acquired another title, or may have claimed to 

hold adversely to his landlord. But such presumj>tious shall not 

be made after the periods herein limited. 

Descent cast- SeC. 107. 'I'hc right of a pcrsou to the possession of any real 

wT'xiv 8110 P^'t'l'^i'ty •''^"'^' "<^'*' '*^ impaired or affected by a descent being 

cjist in consequence of the death of a person in possession of such 

property. 



OF SOUTH CAROLINA. 49 

"' A.n.xmi. 
This chuupcH comiiKni law (loctrinc a.s to tranHTnifviion of poiwesHion from - y""^ 
anwBtor to heir, wliicli presumed tlmt tin* i)os80SHi()ii was rij^litfiil. — (irii/rr v. 
Ka^/lrt; 15 S. V., 'J<i2 ; Dunn v. K<;-, 2i> S. C, '2\'.). WJn-u I lie licir in in of hin 
ancj'Htor's possession and there is no now <'ntry, tJie iMissession of the lieir is 
tluit of the ancestor. — Dunn v. AVf, 2f> H. C'., :21!(. But where the iMWsowion 
of thi' ancestor lijus been int<>rrupted or put an end to, th<' entry of the h«'ir in 
a now trespa.ss, and the ]M)ssesMions (h) not unite to make tith- in heir. — Cong- 
don V. Mon/an, \\ S. C, r)Sr ; Johnsan v. Cobb, 'J» S. C, 'M2. 

Sec. 108. ii 11 person entitled tf> conimence any action for i.,.nwn« under 
the recovery of real property, or to make an entry or defense '"■''"''"''^' 
rdiiiided on the title to real })roperty, or to rents or services out 
of the same, he, at the time such title shall first descend or 
accrue, either — 

1. Within the age of twenty-one years; or, 

2. Insane ; or, 

3. Inipi'isoiu'd on a ci-iiniiial or civil charge, or in execution 
upon conviction of a criminal offense for a term less than for 
life— 

The time during which such disability shall continue shall not "isTg "xv^iw 
be deemed any jiortion of the time in this Chapter limited for 
the commencement of such action or the making of such entry 
or defense ; but such action may be commenced, or entry or 
defense made, after the period of ten years, and within ten years 
after the disability shall cease, or after the death of the person 
entitled who shall die under such disability ; but such action 
shall not be commenced, or entry or defense made, after that 
period. 

Referred to.— Duren v. Kei\ 2tj S. C, 21'.». 

Sec. 109. No action shall be commenced in any ease for the Aft^r forty 
recovery of real property, or for any interest therein, against a whutev't'raiiow- 
person in possession under claim of title by virtue of a written 
instrument, unless the person claiming, his ancestor or grantor, 
was actually in the possession of the same or a part thereof 
witiiin forty years from the commencement of such action. And 
the i)osse.-<sion of a defendant, sole or connected, pursuant to 
the ))rovisions of this Section, shall be deemed valid against the 
world after the la]).se of said period. 



50 



CODE OF CIVIL PROCEDURE 



A. D. 1894. 



CHAPTER III. 

Time of Commencing Actions other than for the Re- 
covery of Real Property. 



Sec. 

110. Limitation presfiibed. 

111. Twenty years. 

112. Six years. 

113. Three years. 

114. Two years, 



Sec. 

115. One year. 

116. Actions upon current account. 

117. Actions for penalties. 
IIH. Actions for other relief. 
119. Actions by the State. 



Lim i t a 1 1 o n 
prescribed. 
1870, XIV., §112. 



Twe nty years. 
Ib.,Tll3^ 



1880, 
415. 



XVII. 



Section 110. The periods prescribed in Section 94 for the 
commencement of actions other than for the recovery of real 
property shall be as follows : 

Sec. 111. Within twenty years : 

1. An action upon a jndgment or decree of any Court of the 
United States, or of any State or Territory within the United 
States. 

2. An action upon a bond, or other contract in writing, 

secured by a mortgage of real property ; an action upon a sealed 

instrument other than a sealed note and personal bond for the 

payment of money only, whereof the period of limitation shall 

be the same as prescribed in the following Section. 

Subdivision 2 does not apply to action for breach of warranty in deeds made 
before lS70.—Bratton v. Cruy, V2 S. C, 42. Nor to seal note which matured 
before that tiuie.— Nichols v. Briggs, IS S. C, 473. But mortgage given to 
secure it might be foreclosed at any time within twenty years.— /b. Nor to 
bond executed before that time. — Neely v. Yoi'kville^ 10 S. C, 141 ; State v. 
Lake, 30 S. C, 43. But it does apply to official bond executed since that time.— 
Strain v. Babb, 30 S. C, ;342. 

Six yeare. Scc. 112. Within six years : 

1870, XIV., §114. I ^j^ action upon a contract, obligation or liability, express 
or implied, excepting those provided for in Section 111. 

Applies to actions on waiTanty in deed. — Bratton v. Guy, 12 S. C, 42. 

In actions against heirs or devisees to subject real estate in theu* possession 
to pa3rment of debts of ancestor or devisor, nine months must be added to the 
six years. — Cleveland v. Mills, 9 S. C, 4:30. 

2. An action ujion a liability created by statute, other than a 

penalty or forfeiture. 

. 3. An action for trespass upon or damage to real property. 

4r. An action for taking, detaining or injuring any goods or 

chattels, including actions for the specific recovery of personal 

property. 

Applies to action to recover houses on land sold to plaintifif by party in pos- 
session. — Doiuinick v. Fan; 22 S. C, 585. To action to recover amount of 
mistake in compromise settlement of note. — McMakin v. Gowan, 18 S. C, 502. 



I 



OF SOUTH CAROLINA. 51 

_ . .- _ ^ [, ,„,,, 

5. An action for ci'iniinul conversation, or for any oilier injury ^— -v— ^ 
to the person or riglits of anotlier, not arisiii<^ on contract, and 
not hereinafter enumerated. 

G. Any action for relief on tlic gi-ound of friuid, in cases wliieh, 
heretofore, were solely cognizable by the Court of Chancery, the 
cause of action in such case not to be deemed to have accrued 
until the discovery by the aggrieved party of the facts constitut- 
ing the fraud. 

7. Action may be brought in any of the Courts of this State i89i7xx.7i6ij. 
])roperly having jurisdiction thereof on any policies of insurance, 
either fire or life, whereby any person or property resident or 
situate in this State may be or may have been insured, or for or 
on account of any loss arising thereunder, from the date of such 
loss, or from the accrual of the cause of action under said policy, i iJ^'j^Jji^.y ' „ „ t 
any clause or condition in the said policies or limitations therein ^ntroiung. 
contained to the contrary notwithstanding. 

Where goods held for safekeeping are destroyed, this limitation begins to 
run from date of loss or of owner's notice thereof, and not from time of de- 
mand. — Cohrs V. Fraser, 5 S. C, 356. 

Subdivision 6 applied.— Means v. Feaster, 4 S. C, 257 ; Beattie v. Pool, 18 S. 
C, 37!) ; Kibler v. Mcllwain, 16 S. C, 550 ; Suber v. Chandler, 18 S. C, 5:3(5 ; 
Richardson v. Mounce, 19 S. C, 477 ; McSween v. McC'own, 23 S. C, 342 ; City 
Council V. Bank, 23 S. C, 410 ; Amicker v. New, 33 S. C, 28. 

Sec. 113. Within three years : _Three years._ 

1. An action against a Sheriff, Coroner or Constable, upon a ^^'''"' ^'^•' *"^- 
liability incurred by the doing of an act in his official capacit}', 

and in virtue of his office, or by the omission of an official duty, 
including the non-payment of money collected upon an execu- 
tion. But this Section shall not apply to an action for an escape. 

2. An action upon a statute, for a penalty or forfeiture, where 
the action is given to the party aggrieved, or to such party and 
the State, except where the statute imposing it prescribes a dif- 
ferent limitation. 

Sec. 114. Within two years : Two yeare. 

1. An action for libel, slander, assault, battery, or false impri- ^''•'S"''- 
sonment. 

2. An action upon a statute for a forfeiture or penalty to the 

State. 

An agreed forfeit of a certain amount to State for breach of contract is 
stipulated damages and not a technical penalty ; and action therefor is not 
hereby barred in two years.— Lipscomb v. Secgers, 19 S. C, 425. 

Sec. 115. Within one year : One year. 

1. An action against a vSheriff or other officer for the escape of ^''- ^''~- 
a prisoner arrested or imprisoned on civil process. 




CODE OP CIVIL PROCEDURE 



. ,, Sec. 116. Ill :ni ;icti()ii l)r(»ui;ht to recover a Ijiilaiicc duo 

AcUdUs u|H)ii ».'^v. A AW. t^ 

current iwvtmnt upon a mutual open and current account, where there have 

//16IIK 

been reciprocal demands between the parties, the cause of action 

shall be deemed to have accrued from the time of the last item 

proved in the account on either side. 

A seal note on one side and an open at-count on the other do not constitute 
such a mutual open and current account.— C'/iapman v. Chapman, 31 S. C, 

405. 

Actions for Scc. 117. An action upon a statute for a penalty or forfeit- 
ih.,sii9. — "^6 given, in whole or in part, to any person who will prosecute 
for the same must be commenced within one year after the 
commission of the offense ; and if the action be not commenced 
within the year by a private party, it may be commenced within 
two years thereafter, in behalf of the State, by the Attorney- 
General, or the Solicitor of the Circuit where the offense was 
committed, unless a different limitation be prescribed in the 
statute under which the action is brought. 
Actions for Sec. 118. An action for relief not hereinbefore provided for 
jb^T rao^ — must be commenced within ten years after the cause of action 
shall have accrued. 

Action founded upon purely legal demand not governed by this Section. — 
McMakin v. Gowan, 18 S. C, 502. 

Actions by the SgC. 119. The limitations prescribed in this Chapter shall 
J 5., §T2r — apply to actions brouglit in the name of the State, or for its 
benefit, in the same manner as to actions by private parties. 



CHAPTER IV. 

General Provisions as to the Time of Commencing 

Actions. 

Sec. : Sec. 

120. When action deemed commenced. 126. Stay of action by injunction, Ac. 

121. Exception -defendant out of Stale. 127. Disability must exist when rlgrht ac- 



122. Exception as to persons under disa- cruod. 

biUtles. 128. Two or more disabilities 

123. Death of person entitled before limit- 
ation expires. 

124. Suits l)y aliens. 

125. WhtTc judirment reversed. 



129. This Title, when not to apply. 

130. The nice. 

131. New promise must be In writing. 



When action 



Section 120. An action is commenced as to each defendant 

menced. ^ " "' wheu the summons is served on him, or on a co-defendant, who 

i8«o, XIV., «i22. is a joint contractor, or otherwise united in interest with him. 

An attempt to commence an action is deemed equivalent to the 

commencement thereof, within the meaning of this Title, when 

the summons is delivered with the intent that it shall be actually 



OP SOI "I'll (A 1:01,1 \,\. 53 

^ A. I). \s:>\. 

KCM'Vcd, to t lie SlicrilT or ol licr (plliccr of I he ( '(iiiiit \ in which t lie • 

(IcrciKJiiiils or one of thciii iisii;illy or iiist resided ; or, if ii cor- 
poral ion he dcfciidai:! . to the SherilT or other ollieer of the 
('oiiiilN ill which ,-iich corporation was estaltlislie(| hy law, or 
w lu're its general business was transacted, or whiic it k( |it an 
ollicor for the transaction of business. 

Ciirrlni, V. nurf/nu, r_' H. C, 122; Sfatr v. Colim, l.S S. ('.. I'.ts. 

Sec. 121 II when the cause of action shall accrue at^ainst Exr«i>tion— 
1 1 11 1 I V n i^'4. I 1 *• I ' cJcfciHlunt out 

any jjcrson he shall he out of the ^tate, such action may he com- of stau^. 

meiu'cd within the terms herein respectively limited after the ^''-'Si**- 

rctiiiii of <\\i'\\ \H'V>n\\ into this State; ami if after such cause of 

action shall have accrued such person sluill dej)art from and 

i-cside out of tliis State, or remain continuously absent therefrctm 

for the space of one year or more, the time of Jiis absence shall 

not be deemed or taken as any part of tlie time limited I'oi' tlie 

commencement of such action. 

The saving clause of this Section as to persons who ' ' return " to the State 
cinljraces such jwrsons as come into the State without a previous residence 
here. — Burrows v. French, 14 S. C, KVS. 

Sec. 122. If a person entitled to luring an action mentioned Exroption &a 

,11 / , 1 J II- 1 i J- i- • J . . t«) persons u n- 

m the last C liapter, except tor a penalty or lorieiture, or against der aLsubiiuies. 
a Sheriff or other officer for an escape, be, at the time the cause f'*-. 8124. 
of action accrued, either — 

1. Within the age of twenty-one years; or, 

2. Insane ; or, 

'.]. Inijirisoued on a criminal or civil charge, or in execution 
iiiuler the sentence of a criminal Court for a term less than his 
natural life — 

The time of such disaV)ility is not a part of the time limited 
\'nv the commenccn)ent of the action ; exce])t that the jieriod 
within which the action must he brought cajuiot be extended 
more than five years by any such disability, excc})t infancy ; nor 
can it be so extended, in any case, longer than one year after the 
disability ceases. 

All infant has as much time within which to bring his actiim as persons not 
uiiilrr disability, and under this Stx-tion lie has oni' additional year aftt^r his 
majority, but no longer, to do .so, if the time limited exjuro Iw^fore or within 
that additional yviir.—Frickn v. Leiois, 2<! S. C, 2:57; Anderson v. Simins, 2*.! 
S. ('., 217. 

Sec. 123. II !i person entitled to bring an action die before D.vuth .if |ht- 
t he expiration of t he time limited for t he couinieiiccnicnt thereof. 'f,\Vc"' 'iimitatioii 
and the cause of action survive, an action mav be commeiu'i-d by ?il!.'vhf- 



1870, ZIV., 013S. 

his representatives, after the ex]»iratiiMi of that time, and within 




CODE OF CIVIT- PROCEDURE 



one year from his (loath. H" a person aj^ainst whom an acti<»n 
may he l»rou;^f]it die hefore the expiration of tlie time limited for 
the commencement thereof, and tlie cause of action survive, an 
action may be commenced against his executors or administra- 
tors after tlie expiration of that time, atid within one year aftor 
the issuin<f of letters testamentary or (»f administration. 

< )nly ii])plies to cases where the Statute commenced to run in lifetime of de- 
cwlent, aud statutory peri<xl exi»irod iM'fore administration. — Sfraiu v. liabb, 
:10 S. C, 'M'i. It must Ik" shown that the action was commencetl within one 
yejir after letters testamentary or of administration wen^ ^n'anted, or the plea 
of Statute of Limitations will not avail.— /of/f/<'//<' v. Gaffnry, :{:*S. C, '.iO'.i. 

Where statutory periotl has not expired before administration, the executor 
or administrator, under the law protecting administrator or executor from 
suit for nine months, that time must be added to the statutory period.— CV«b«- 
land V. Mills, t( S. C, 4;i} ; Hayes v. Clinkscales, U S. C, 4.")0 ; Moore v. Smith, 
2i)S. C, 2.54. 

Where action is in form ex delicto, and defendant die, it cannot be revived 
against his personal representatives. — Huff v. Wat kins, 20 S. C, 477. 

Suits by aliens. Ssc. 124. NVhcn a pcrson shall be an alien subject, or citizen 
" ~"" of a country at war with the United States, the time of the con- 
tinuance of the war shall not be part of the period limited for 
the commencement of the action. 
Where judg- Sgc. 125. If an action shall be commenced within the time 
I h., § i27\ — ^ prescribed therefor, and a judgment therein be reversed on 
appeal, the plaintiff, or, if lie die and the cause of action survive, 
his heirs or representatives, may commence a new action within 
one year after the reversal, 
stayofacuon Sec. 126. When the commencement of an action shall be 
^y ""' stayed by injunction or statutory prohibition, the time of the 

//)., §128. continuance of the injunction or prohibition shall not be part of 

the time limited for the commencement of the action. 
DLsabiiity must SgC. 127. No pei'son shall avail himself of a disability, unlcss 
accrued.''" "^^^^ it existed when his right of action accrued. 
7 b., 6 129. Where disability intervenes after right of action accrues, it does not stop 

this Statute.— ,S'/n(/>m-A- v. Adams, 20 S. C, 4!t. 

Two or more Sec. 128. When two or more disabilities shall co-exist at the 

T/»'t^ time the right of action accrues, the limitation shall not attach 

until they all be removed. 
This Title, Sec. 129. This Title shall not aifect actions to enforce the 
when not to ap- p^yj^^g^j. ^^ biHg^ notes or Other evidences of debt, issued by 
ij*., 8131. moneyed corporations, or issued or put in circulation as money. 
The uke. SeC. 130. This Title shall not aifect actions against directors 

/b., 9132. or stockholders of a moneyed corporation, or banking associa- 
tions, to recover a penalty or forfeiture imposed, or to enforce a 
liability created by law ; but such actions must be brought within 



OF SOUTH CAIfoLINA. 56 

A. I). 1W»>. 

six ycai's nflcr I In- discoviT}' I)}' the :i;4;;iir\ ud |iart\ nf the fju^ta '^■"""v— "^ 

ii|t(iii wliicli the penalty or forfeiture, attached, or (lie liability 

was created, unless otherwise provithd in the law uiKJer wliieh 

such corporation is organized. 

Sec. 131. No a(d\ii(iwledij;ni('nt or promise shall be sufficient n«'w pnuniia- 

• 1 f 4- • * i 1 I X 1 1 ii muHl iM! in wrlt- 

evulence ol a lu'w or i-oiuinumg contract, wliereby to take the ing. 

case out of the operation of this 'i'itle, unless the same I)e con- "'••*'''• 

tained in some writing signed by the party to be charged thereby; 

hut |iayinent of any part of principal or interest is erpiivalent to 
a promise in writin^ir. 

This Section has roforenct' only to the evidence necessjiry to estabhsh an 
jKkiKiwU'df^nont or new promise, but does not chimfifc! the pre-existinK law us 
to what aeknowlcHlf^nonts will continue a debt not Ijarred or what new prom- 
ises will create a new contract. — Ester v. Wuod, 21 H. C, (iOO. 

Parol promise not to plead the statute cannot operate as a waiver or as an 
uf^eement, or byway of estoppel to subvert this Section. — ///// v. Pmin, 21 
S. C. -.IVt. 

A viTbal promise to pay a debt after discharge in liankruptcy is not affectetl 
by this Section, but is valid.— La ji/r/- v. Tolli'sou, 20 S. C, .57. 

Administrator putting due bill made by him upon his inventory i.s not such 
new iiromise. —/>'/« cA- v. White, lo S. C, 37. 

l^ayments by one of joint contractors do not bind the others and deprive 
them of the jirotection herein provided.— -S»n7/t v. Townsend, Rich., 44; 
Smitfi v. Caldwell, \h Ricb., a74 ; Shuhrick v. Adami^, 20 S. C, 4!t ; Walter v. 
Kraft, 2;^ S. C, .')7S. And if payments have been made by debtor, the action, 
after expiration of six years, must be on new promise implied from payment, 
and not on uottK—Fleviijiij v. Fleminij, 'S'.'> S. C, !iOn. 

Does not apply to judgment obtained before adoption of Code, under Sec. 
'X\.—Colvin V. Phillips, 2.5 S. C, 228. 



TITLE TIT. 

PARTIES ^ro CIVIL ACTIONS. 



i:)-. I'lirty In interest to siii'; iictlcm by 
(franlLM- of hind held adversely. 

lM:i. Asslffiinient of tliinjr In action. 

IHJ. Actlun.s liy executor, trustee, &c. 

135. Actions l)y and aijulnst inurrled wo- 
men. 



\HH. Wlio may he iilalntills. 
181). Who may bedefenduia.s. 
140. One or more may sue or defend forall. 
111. One action against Uie different par- 
ties to bills aixl notes. 
1 i'i. Action, when not to abate. 



i:)(l. Uifants. actions by an<l affalnst. j Wi. Court to decide conln)versy, Ac; In- 

1:)7. (Juardlaii, how appointed. I terpleadln^'. 

Section 132. livery action must he prosecuted in the name crty m mier- 

.. , , , , • • i i. i L\ • • 1 1 • est to sui' ; ai'- 

ol Hie real parly in interest, except iis otiierwise })rovided m ,|„„ i,y ^n„n,.,. 
Section i:!l : hut this Section shall not be deemed to auth()rize v[.,!i'",y.'"''''"*'' 
the assiiriinient of a thing in action not arising out of contract, ifco. xiv.. m.ij. 
liiit an action may he maintained by a grantee of laml in the 
name of the -^raiilor, or -his or her Jieirs or leual re})re8entative8, 



56 CODK OF (INI I. I'U* K"F.l)r IIK 

A. V. lMt4. 

""—"v -^ wlit'ii till' ^n-ant »»r grants are void by reason of the actual posses- 
sion of a person clainiiug under a title adverse to that of tlie 
grantor at the time of the delivery of the grant, and the plaintiff 
shall be allowed to prove the facts to bring the case within this 
|)rovision. 

This Section does no more than express u lonj; establisheil principle, that ull 
parties at interest should be made parties — Cuthcurt v. Smjenheimer, 18 S. C, 
12:5. 

Onlj' the real party in interest can sue. — SuUiran v. IlfUams, fj S. C, 1H4. 

A County, as real party in interest, may sue on oflScial bond of County Trea- 
surer. — On'mvillc Co. v. Jhiiiion, U S. C., 1. 

Distributees may sue in their own names uixin the bond of administrator of 
their intestate.— A'f(»ii»ipr v. Hopr, 9 S. C, 25:1 

Action may be brought in name of State alone on official lx>nd of Clerk. — 
State V. Mosrs, 18 S. C, ^MVl 

A mortKa^c given to City Council of Charleston to secure certain lx»nds 
issued by them to mortgagor is properly sued in name of City Council.— CiVj/ 
Conncil v. CuulJMiI, 19 S. C, 201. 

Probate Judge, as successor of the Ordinarj'. cannot, its real party in inter- 
est, sue on administration bond given to his predecessor. — Johnson v. Dawkins, 
20 S. C, 528. 

Action at law to recover proiierty of lunatic or damages for its detention 
must be brought in name of lunatic by his committee.— Cathcart v. Sugen- 
heimer, 18 S. C, 128. 

Assignment of Sec. 133. lu the case of an assignment of a thing in action, 
^^'j'b '§135"°° ^^^® action of the assignee shall be without prejudice to any set- 
off or other defense existing at the time of or before notice of 
the assignment ; but this Section shall not api)ly to a negotiable 
promissory note or bill of exchange, transferred in good faith, 
and upon good consideration, before due. 

In action by assignee of sealed note against maker, defendant may set up 
debt due him by assignor Ijefore notice of as.signment as etjuitable defense, 
though pleaded by counter-claim, without demand for judgment thereon. — 
Sxillivan\. Blythe, 14 S. C, fi21. 

So a.ssignee of share of distributee, who is surety on administration bond, 
takes subject to his liability on such Xxmd.—Botw v. Vaidcn. 20 S. C, 271. And 
a.ssignee of bond and mortgage takes subject to credits that should go on 
them.— Moffrft v. Hardin, 22 S. C, 9. 

This Section does not apjily where party moves to set oflf judgment against 
him l)y a judgment he holds against the other party, when the judgment 
against him has been a.ssigned by the other pjirty for value.— .S'i'»i hi oji.s v. /i«iV/, 
:il S. C, :i89. 

Actions by ex- Sbc. 134. All cxecutor or administrator, a trustee of an 
ecutor, trustee, , , 1 xi • j 1 i. i. 1. 

At. express trust, or a person expre."<sly authorized by statute, may 

/?).. S130. g^g^ without joining with him the person for whose benefit the 

action is prosecuted. A trustee of an express trust, within the 

meaning of this Section, shall be construed to include a persftn 

with whom, or in whose name, a contract is made for the l»enetit 

of another. 



I 



OF SOUTH CAIfoLlNA. 57 

A.I). IH^I. 

Commissioner in E<iuity amid sue in liis own imnn- mi lumd i^ivcii to liiin for *•— v —' 
benefit of others, altliouj^li it had hccn tvirmd over to the Clt-rk, liis huc- 
cesHor. — nillinas v. W'illiiniisini, <» S. ('.. Hit. 

AdiniiiiHtrator may siu- in his own naint? on note payahli; to him tin such, 
thouj;li it had Wvu transfornnl, and suit is for benefit of a.ssi(^iee. — (.'arroU v. 
Still, 1:5 S. C, ■«;{(). 

(•lerk of Court is ])rop('r party to sue on bond given to fornier ("ommissioner 
in E(iuity in his County.— Aouc/.s v. Mosrs, I'J S. C, i:iO ; Chirk v. Smith, 13 
S. C., ns.-,. 

Succt'cdiiif; conimittee may brinjj action a^ninst executors of deceiLsed com- 
mittee for an account, without joining thi; lunatic as a party. — Anhlrj/ v. Ilol- 
iiiiDt, 1.") H. C, 'M. 

Where equitjible relief as to estate of lunatics is sought, it seems that the 
committee may sue alone. — C'athrurt v. Sutjrnhrimcr, 18 S. C, V£i. But he 
cannot sue alone in svction at law.— Uriffin v. (h-iffin, 20 S. C, 4W. 

Superintendent of Penitentiary may sue in his own name for atnounts due 
State by hirer of convicts for their escape. — Lipsromh v. Scpfjcm, lit S. C, 4;i5. 

Probate Judge, as successor of Ordinary, may sue in his own name upon 
administration bond given to his predecessor.— ./o/i)i.so>i v. Darvkins. :i() S. C, 
5L\s. 

Sec. 135. \\ lien a married woman is a party her liiis})ancl Artinn.s by nn«i 

, . . 1 •,! 1 L I_^ I against inarrlcd 

must be joined witli her, except tliat — women. 

1. When the action concerns her separate property, she may ^''•'*^^"- 
sue ur be sued alone : Provided, That neither her husband nor 
his property shall be liable for any recovery against her in any 
such suit ; but judgment may be enforced by execution against 
her sole and separate estate in the same manner as if she were 
sole. 

3. When the action is between herself and her husband she 
may sue or be sued alone ; and in no case need she prosecute or 
defend by a guardian or next friend. 

Where wife is sued upon contract other than for necessary support, the hus- 
band is a formal and not a substantial party.— /I'o.s-.s v. Lincler, 12 S. C, .5'.»2. 

Where an action against a married woman does not concern her separate 
proix'rty, her husband is a necessary party ; where it does, he is only a projier 
party. — Lomni v. Jackson, 'SI S. C, JilH. 

But where the action does concern her separate projierty and the husband 
has a vested right in it, then he is necessary ^axty.—Iiunnisti-r v. Hull, If! S. 
C, 220. 

Sec. 136. When an infant is a party he must ap])e;ir hy.unur- infunts. act ions 

(lian, who may be ai)pointed ])y the Court in whii-h the action is ''//.""li^l^Jll^V 

iJTosccuted, or by a Judge thereof, or a Prol)ate Judge, or by a ^^'"•' *^- 

.Master in those Counties where the office of Master now or mav 

hereafter exist ; but if the jietioii be for the jiartition of real 

estate the guardian may also be ap})ointed by the Clerk of the 

Court of Common Pleas. 

Probate Judge may ai)j)oint guardian ad litem for infants i»arties to actions 
in the Court of Common Pleas. — '/Vajj^iVr v. Waldu, l(i S. C, 27ti ; Lylr.s v. 
//r/.sAv//, :KS. C.,:iyi. 




CODE OF CIVIL PROCEDURE 



Sec. 137. I'lit^' ^Miiudiaii shall be api)ointe(l as follows : 
iipiMiint.'ii.' " 1. When the infant is phiintiflf, upon the application of the 
iKTd, XIV.. f!i:iit. inimit^ if ]^^, ]y^, ,)f ^,1^. j^jr^ of fourteen years ; or if under that ajjc, 

upon the a])j)lieation of his general or testamentary guard ian, if 
lie has any, or of a relative or friend of the infant. If made hy a 
relative or friend of an infant, notice thereof must first be given 
to such guardian, if he has one ; if he has none, then to the })cr- 
son with whom such infant resides. 

jT;; 2. When the infant is defendant, upuu the ui)pliculion of the 

infant, if he be of the age of fourteen years, and apply within 
twenty <lays after service of the summons. If he be under the 
age of fourteen, or neglect so to apply, then upon theapjtlication 
of any other party to the action, or of a relative or friend of the 
infant, after notice of such a})})lication being first given to the 
general or testamentary guardian of such infant, if he has one 
within this State ; if he has none, then to the infant himself, if 
over fourteen years of age, and within the State ; or if under 
that age, and within the State, to the person with whom such 
infant resides. And in an action for the partition of real prop- 
erty, or for the foreclosure of a mortgage or other instrument, 
when an infant defendant resides out of the State, or is tem})o- 
rarily absent therefrom, the plaintiff may ai)ply to the Court in 
which the action is pending, or to a Judge, Clerk or Master 
thereof, and will be entitled to an order designating some situa- 
ble person to be the guardian for the infant defendant, for the 
purpose of the action, unless the infant defendant, or some one 
in his behalf, within a number of days after the service of a copy 
of the order, which number of days shall be in the said order 
specified, shall procure to be appointed a guardian for the sjiid 
infant ; and the Court or officer appointing shall give special 
directions in the order for the manner of the service thereof, 
which may be upon the infant. 

And in case an infant defendant, having an interest in the 
event of the action, shall reside in any State with whii-h there 
shall not be a regular communication by mail, on such fact satis- 
factorily appearing to the Court, the Court may a|t]toint a guar- 
dian ad lifein for such absent infant party, for the ])urpose of 
l)rotecting the rights of such infant in said action, and on such 
guardian ((d litem i)rocess, pleadings and Jiotice in the action 
may be served in the like manner as upon a ])arty residing in 
this State. 

No jurisdictiou of tlic ju'rsons of infants c«n bo obtained exc"ei)t by exact 
conipliancL" with tho rc(i\iiri'nicnt.s of this Section. — Finlcf/ v. I\ol»'rfs(ni, 17 S. 
C, 485 ; h'ilccr v. Vautjlm, '^i S. C, 1S7 ; Teih-rall v. lioulmujM, 25 S. C, 275. 



Ol' SOITII CAl.'ol.lNA. ni) 

A.I). U'.il. 
Notice to father ami infants, to ai)i)f'ar and an.HWcr c'()nij)laint, thi-rc ht•^u^f '^-^ ,— ^ 
no general or tcstanicntarv j^iardian, and they residing; with liini, wa« snh- 
Btantial notice of ai)plicatiun for apiJointnient <>f guardian </</ litriii. — Li/Irs v. 
IlnsMI, .r, S. C, ;J1M. 

Sec. 138. All jjorsons hiivin^ :iii interest in the sultji'ctof the Who may i* 
action, mid in obtaining the relief demanded, may ha joined as ["hvVxiv. bhi). 
plaintiff, except as otherwise provided in this Title. 

liobots V. Johns, 10 S. C, 101 ; Hcllams v. Swifzcr, 24 S. C, aO ; Slalliufjs v. 
Barrett, 'S,S. ('.,474. 

Sec. 139. Any person may be maile a defendant who has or who may be 
claims an interest in the controversy adverse to the plaintilT. or ^,?!'^°'^f "'""'■ ., 

^ loiU, XIV ., rl )1. 

who is a necessary party to a complete determination or settle- 
ment of the questions involved therein ; and in an action to re- 
cover the possession of real estate, the landlord and the tenant 
thereof may he joined as defendants ; and any jierson claiming 
title or a right of possession to real estate may be made parties 
plaintiff or defendant, as the case may require, to any such action. / 

A joint action upon a joint and several bond, by two obligoi-s, may be 
brought again.st the survivor of them and the executor of the deceased one. — 
Trimmicrv. Thomjjson, 10 S. C, UA. 

In action for tort, one cause of action against two defendants cannot be / 
joined with a cause of action against one of them. — Hines v. Garrett, 20 S. C, ' 
480. — — _^., " " 

In actions for foreclosure, a party in possession, claiming title to land, was 
properly made a party defendant.— Sa^e v. Mer/gett, 25 S. C, 72. 

Sec. 140. Of the parties to the action, those Avho are united one or more 

in interest must be joined as jjlaintiffs or defendants ; but if the fend tor aii. 

consent of any one who should have been joined as plaintiff can- J*'-'8iJ2. 
not he obtained, he may be made a defendant, the reason thereof 
being stated in the complaint ; and when the question is one of 
a common or general interest of many persons, or when the 
parties are very numerous and it may be impracticable to bring 
them all before the Court, one or more may sue or defend for 
the benctit of the whole. 

This provision applies to legal as well as equitable actions : but does not 
abolish entirely the common law requirements in legal actions for torts. — 
Hellams v. Siritzcr, 24 S. C, ::•.» ; Ilhu-fi v. Jurrett, 2(5 S. C, 430. 

Two tenants m common can join in action to recover possession of their 
shares in land from a stranger without making other co-tenants parties.— /^oh- 
nister v. />'«//, l(i S. C, 220. 

An action bj- single creditor against receiver and stockholders of an insol- 
vent bank for his debt is defective for want of parties ; it .should be brought 
by plaintiff on behalf of himself and other creditoi-s.- 7'cri-}/ v. Calnan, 4 8. C, 
514. And it .should bo against all the stockholders, and not one alone.— Trrrj/ 
V. Afartin, 10 S. C, 2<;:i. 

One who lu^serts distinct claim, peculiar to himself, cannot join other cred- 
itors or claimants with him. — iranni v. Ix'aymond, 17 S. C, W). 



not to a b ate. 
Ib~, i 144. 



60 CODE OF CIVIL PROCEDURE 

A. D. 1894. ~~ 

^— — Y-^-^ "Where plaintiffs eae for benefit of whole class the jad^rment is binding; and 

conclusive upon all parties of the class who Htand out.— .SYa<«- v. C. dt L. It. U. 

Co., la S. C. 290. 
It is only where one or more may sue or defend for the benefit of the whole 

cla&s tliat counsel fee c^in l)e allowed out of the common fund.— iri7«on v. 

Kelly, 30 S. C, 483. 

One notion Sbc. 141. Poivous .severally lial>le upon the same obligation 
ren'^nrparties'io 01" iiistninieiit. including the parties to hills of exchange and 
^'ib'^Tiia'^ promissory notes, may all, or any of them, be included in the 
same action, at the option of the plaintiff. 

Action may be maintained on joint and several obligation by two obligors 
again.st the sur\ivor and the personal representative of deceased one.— Trim- 
viier V. Thompson, 10 S. C, IW. 

Action, when Sec. 142. ^o action shall abate by the death, marriage, or 
other disability of a party, or by the transfer of any interest 
therein, if the cause of action survive or continue. In case of 
death, marriage, or other disability of a party, the Court, on 
motion, at any time within one year thereafter, or afterwards, 
on a supplemental complaint, may allow the action to be con- 
tinued by or against his representative or successor in interest. 
In case of any other transfer of interest, the action shall be con- 
tinued in the name of the original party, or the Court may 
allow the person to whom the transfer is made to be substituted 
in the action. 

After a verdict shall be rendered in any action for a wrong, 
such action shall not abate by the death of any party, but the 
case shall proceed thereafter in the same manner as in eases 
where the cause of action now survives by law. 

At any time after the death, marriage, or other disability of 
the party plaintiff, tlie Court in which an action is pending, upon 
notice to such persons as it may direct, and upon application 
of any person aggrieved, may, in its discretion, order that the 
action be deemed abated, unless the same be continued by the 
proper parties, within a time to be fixed by the Court, not le-s 
than six months nor exceeding one year from the granting of 
the order. 

An ajn"epnieut to arbitrate, which does not name nor provide number and 
appointment of the arbitrators, does not discontinue action alter death of 
plaintiff, revived by administratrix.- /,i/>ir/i v. Goodwin, (i S. C, 144. 

This Section does not determine what actions so survive, but the common 
law mle still governs : and an action ex delicto does not survive. — Hxtff v. 
Wothius, 20 S. C, 477. 

No leave is necessarj' to file such sujiplemental complaint. — PanxrH v. 
Monrr, 1« S. C, :MS : AHhnr v. Allen, 2'J S. C, 43-'. And this right to so 
revive is not limited in point of tiiae.—Best v. Sanders, 22 S. C, 589. 



OF SOUTH CAROLINA. Gl 

^^^lere action is so contiiiucnl by order, with notice to appear and answer, it ^ — sr~—^ 
J8 not requisite that there Ix- u suininons also.— />j//r.v v. IhixUvU, :« S. C, lilM. 
But where continued by suijphauental c<^)nii)hiiiit, summons w necessary. — 
Aithxu- V. Allen, 2:2 S. C, 432. 

Sec. 143. The Court may determine any controversy l)etwct'n court to .ipri.ie 
tlio j):irtiL'.s before it, when it can he done without j)rojudice to Jn'[j!,I,',',^^^*n'*'-- 
the rights of others, or by saving their rights ; but when a com- iu^i\^. 
plete determination of the controversy cannot be had without 
the presence of other parties, the Court must cause them to be 
brought in. And when in an action for the recovery of real or 
personal property a person not a party to the action, but having 
an interest in the subject thereof, makes application to the Court 
to l)e made a party, it may order him to be brought in by the 
proper amendment. 

A defendant against whom an action is pending upon a contract, 
or for specific real or personal property, may, at any time before 
answer, upon affidavit that a person not a party to the action, 
and without collusion by him, makes against him a demand for 
the same debt or property, upon due notice to such person and 
the adverse party, apply to the Court for an order to substitute 
such person in his place and discharge him from liability to 
either party on his depositing in Court the amount of the debt 
or delivering the property or its value to such person as the 
Court may direct ; and the Court ma}^ in its discretion, make 
the order. 

A\Tiere plaintiff thinks a third person is a necessary party to the complete 
determination of the action, he should take proper steps to have him made 
defendant.— £<f A- ni v. Knox, « S. C, 14. 

In action by single creditor against receiver of insolvent coi-poration and 
number of indi\'idual stockholders, all creditors are necessary pai'ties and 
should be brought 'm..—Ti'rr\j v. Calnan, 4 S. C, .508. 

As to substituting defendjint.- P«^/«-.son v. Pagan, 18 S. C, 584. 

Where land is sold under execution after actions commenced to foreclose 
mortgages on it and notices of lis pendens tiled, the purchaser at such sale may 
intervene by petition as a proper party, charging the mortgages to be fraudu- 
lent.— £"u- Parte Mobley, I'J S. C, 337. 



62 CODE OF CIVIL PROCEDURE 

A. D. IhfM. " 

— ^ — TITLE IV. 

OF THE PLACE OF TRIAL OF CIVIL ACTIONS. 

Skc. Sec. 

m. Actions to be tried where subject- HO. Aefluns to be tried where tbe defend- 

matter sltuati-d. unts reside. 

1 to. Action to be tried where cause of ac- 147. CbanglnK place of trial, 

tlon arose. 

The regulations of this Title are intendid feololy for the benefit of the i)arties 
to the action, and parties outside have no rights in the matter.— Trajjirr r. 
Waldo, 10 S. C, 270. 

Actions to be Scctioil 144. Actioiis for the following causes must be tried 

tried where sub- . , , • i • i ^i i • . .i • 

ject matter situ- in tlie Couiitv lu whicu the suDject of the action, or some part 
isTofxiv., 8140. thereof, is situated, subject to the power of the Court to change 
the place of trial, in the cases as hereinafter provided : 

1. For the recover}' of real property, or of an est;ite or interest 
therein, or for the determination in any form of such right or 
interest, and for injuries to real property. 

2. For the partition of real property. 

3. For the foreclosure of a mortgage of real propert}'. 

4. For the recovery of personal property distrained for any 
1867, XIX., 834. cause : Provided, That nothing in this Section contained shall 

be so construed as to prevent the hearing of any of the said 
actions by consent of the parties or their attorneys, and of the 
guardian ad litem of any infant party to said action, in a County 
other than that in which siiid action may have been brought and 
may be pending. 

The words "must be tried" are imperative and cannot be disregarded. 
Judgment in any other County is a nullity.— Tro/jiVr v. Waldo. 1(5 S. C, -*T<'> ; 
Steele v. Exxon, 22 S. C, 276 ; Bacot v. Loumdes, 24 6. C, :«2 ; Ware v. Hen- 
son, 2o S. C, 38.5. 

ITiis Section does not embrace an action by creditors of estate for account 
and marshaling of assets in County where executor resides.— ./ordon v. Mvsrs, 
10 S. C, 431. 

In such action in one County, a part of the lands Ijing in that County and :i 
tract in another County, the title to that tract may be tried in County wh<re 
action is brought.— /^o ?•»•<>< v. Watts, 13 S. C. 441. But where the land devis* li 
has been transferred by devisees, and such action seeks first to set aside tin- 
deed-s, it comes within this Section and must be tried in County where land i.-i 
situate. — /iocof v. Lowndes, 24 S. C, 3112. Where action is against one defend- 
ant residing in County of F and another defendant residing in another County, 
and to foreclose their mortgage on their respective binds situate in both 
Counties, the Court in County F has jurisdiction.— U'ayouT v. Swygert, 30 S. 
C, 21t(}. 

Action against trustee for an accoimting for value of real estate bought with 
tru.st funds in her o^vn name, is not embraced in actions under subdi^^sion 1. — 
Bell V. Flood, 28 S. C, 313. 

Circuit Judge has jiower at chambers to hear an action for partition, while ^ 



OF SOUTH CAROLIXA. 




in thp County in \vlii(-Ii land is situate.— Woodward v. Elliott, 27 8. C, 368. 
But not while in imotluT County.—//*. 

Sec. 145. Actions for the folIo\vin;r causes mu.st be tried in Anions u, u- 
the County where the cause, or some part ther(>of, arose, subject l-^ai .ru/tio,'; 
to the like power of the Court to chan^ro tlie i)hice of trial : ""**'• 

1. For the recovery of a penalty or fi^rfeiture impo.sed by stat- 
ute, except that when it is imposed for an ofTen.se committed on 
a lake, river, or other stream of water situated in two or more 
Counties, the action nuiy be brought in any County bordering on 
such lake, river or stream, and opposite to the place where the 
oiTcnsc was committed, 

2. Against a public officer, or person specially appointed to 

execute his duties, for an act done by him in virtue of his office, 

or against a person who, by his command or in his aid, shall do 

anything touching the duties of such officer. 

The words "mu.st be tried "' are imperative. Judgment in any other County 
is a uullity.— rrajjjcr v. Waldo, Hi S. C, 270 ; Steele v. Extim, 22 S. C, 27(5 ; 
Bacot V. Lowndes, 24 S. C, 392 ; Ware v. Henderson, 25 S. C, 385. 

Sec. 146. Tn all Other cases the action shall be tried in the Actions to be 
County in which the defendant resides at the time of the com- Sdan'Tr^ 

mencement of the action ; and if there be more than one defend- ^^^' 

ant, then the action may be tried in any County in which one or r'.^''^= ''''■^•'' ^^'•' 
more of the defendants to such action reside at the time of the 
commencement of the action ; or if none of the parties shall 
reside in the State, the same may be tried in any Countv which 
the plaintiff shall designate in his complaint, subject, however, .. 
to the power of the Court to change the place of trial in the - 
cases tis hereinafter provided. ^ 

The laufcuage as to trial of action in County where defendant resides is im- 
perative, and places the exclusive jurisdiction there.— Blakely v. Frnzier, 11 
S. C, 122 ; Trapicr v. Waldo, 10 S. C, 270 ; Steele v. Exum, 22 S. C, 27() ; Ba- 
cot V. Lowndes, 24 S. C, 3i)2 ; Ware v. //(•rt(irr.w>i,2.^) S. C, ;iS5 ; Bell v. Fludd, 
28 S. C, 313. If judgment be rendered in another County, the objection to 
jurisdiction may be first raised in Supreme Court.— »«/•«' v. Henderson 25 S 
C. 3S"> ; Bell v. Fludd, 28 S. C, 313. 

The action against more than one defendant may be tried in County where 
one resides.- irf/;/('>icr v. Swijgert, 30 S. C, 21t(i. 

Where none of parties to action nsidc in State, the County designated in 
complaint is proper County for tv'\a.\.- Steele v. Exum, 22 S. C, 270. 

Sec. 147. The Court may change the place of trial in the changiuK piac-e 
following ca^es : of trial. 

1. When the County designated for that purpose in the com- Ji;»'*5':' iVr^* 
plaint is not the proper County. ■''^"' "• 

2. When there is reason to believe that an im])artial trial can- 
not be liad therein. 



G4 



CODE OF CIVIL PROCEDURE 



A. D. IK'.ll. 



;>. AVIuii tlie convenience of Avitnesses and the ends of justice 
would be proniotod by tlic chan'rc. 

When the i)hice of trial is changed, all other proceedings shall 
])e had in the County to which the place of trial is changed, 
unless otherwise provided by the consent of the parties, in writ- 
ing, duly filed, or order of the Court ; and the pai)ers shall he 
filed or transferred accordingly. 

This Section controls tho preceding Sections of this Title, so far as applica- 
ble.— S'f<'f/<' V. Ejnun, 22 S. C, 27(1. And under it the Court has jurisdiction to 
order place of trial to be changed to proper County.— 7'j.; Hell v. Fludd, '2>i S. 
C, 313 ; Geiser Co. v. Sanders, 'JO S. C, 70. And it is its imperative duty to 
do so.— Blakehj V. Fvazier, 11 S. C, 122. But Court in wrong County has no 
jurisdiction to try case on merits, even when no demand is made for change 
to proper County. — 117/ re v. Henderson, 25 S. C, 385. 

The order of Circuit Judge refusing to change place of trial on grounds 
stated in subdi\asion 3 is final and conclusive. — G'oicer v. Thomson, C S. C, 313. 



TITLE Y. 

MANNER OF COMMENCING CIVIL ACTIONS. 



Sec. 

148. Actions, how comraenced. 

149. Summons, requisites of. 

150. Notice to be Inserted In summons. 

151. Complaint need not be served with 
summons. 

152. Defendant unreasonably defendlBg. 
15.3. Notice of lis pendens. 

154. Summons, by whom served ; fees for 
service. 



Sec. 

]r,j, 

1.50, 
157 



Summons, how served. 
Publication of summons. 
Proceedings when part only of de- 
fendants served ; part.ners. 

l.^S. When service by publication com- 
plete. 

159. Proof of ser\lce. 

ICO. When jurisdiction of action acqnlroJ. 



Actions how Section 148. Civil actions in the Courts of record of this 
commenced. State shall be commenced by service of a summons. 



lb., §150. 

Sum m o n s. 



Sec. 149. The summons shall be subscribed by the plaintitT 
requisitesj)f._J or his attorney, and directed to the defendant, and shall require 
,xiv., 51. j^-j^ ^^ answer the complaint, and serve a copy of his answer on 
the person whose name is subscribed to the summons, at a place 
within the State, to be therein specified, in which there i.>^ a 
postoflfice, within twenty days after the service of the summons, 
exclusive of the day of service. 

The date is not one of the requisites of a summons. — Smith v. Wullor. t'. .s. 
C, 1G!>. 

In action against a corporation, judgment by default \vi\\ not be set aside 
because the summons, projwrly entitled, was served upon the President and 
General Agent, and notified "judgment will be taken against you" upon fail- 
ure to answer. — C7a»7v v. Porcelain Co., S S. C, 4.5. 



OF SOUTH CAHOLliNA. Co 

A. D. 1«M. 

Sec. 150. 'Ik' I'laiiiliiy shall also insert in tlic siinunons u """^^^-^"^ 
I , 1 i • ■• . 1 II- 1 i 1 1 1 1- • I i Notice to be 

notice, m sul)st:inci'. ihat ii llic dcu'iulant shall tail to answer inwrtcHi in aum- 
t he complaint within twenty (lavs after the service of tlie snrn- j t,'^ t \rar~~ 
mons, the plaintiff will apply to the Court for tlu' iclief demandccl 
in the com])laiiit. 

Sec. 151. A coi)V of the coiuidaint need not be served with compiuint 
the summons. In such case, the summons must state wJiere the H<Tve<i with 
complaint is or will bo filed ; and if the defendant, within twenty /,,. gi^jj. ~- 
(lays thereafter, causes notice of appearance to be given, and, in 
])t'rson or ])y attorney, demands, in writing, a copy of the com- 
plaint, specifying the place within the State where it may be 
served, a copy thereof must, within twenty days thereafter, be 
served accordingly ; and after such service the defendant has 
twenty days to answer ; but only one copy need be served on the 
same attorney. 

Sec. 152. Ill the case of a defendant against whom no per- Defendant im- 
soual claim is made, the plaintiff may deliver to such defendant, fending. * _^ 
with the summons, a notice subscribed by the plaintiff or his ■'''>•' S'^*- 
attorney, setting forth the general object of the action, a brief 
description of the property affected by it, if it affects specific 
real or personal property, and that no personal claim is made 
against such defendant, in which case no copy of the complaint 
need be served on such defendant, unless, within the time for 
answering, he shall, in writing, demand the same. If a defend- 
ant on whom such notice is served unreasonably defend the action, 
he shall pay costs to the plaintiff. 

The answer in such case must be regarded as merely formal and setting up 
no new or specific equities. — Wylie v. Lyle, 7 S. C, 202. 

Sec. 153. Ill an action affecting the title to real property, the Notice of ns 
j)laintiff, at the time of filing the complaint, or at any time after- ''*^jl''^^Ti^ — 
wards, or whenever a warrant of attachment, under Chapter 4 of 
Title 7, Part 2, of this Code of Procedure, shall be issued, or at 
any time afterwards, the plaintiff, or a defendant, when he sets 
up an affirmative cause of action in his answer, and demands 
sul)stantive relief, at the time of filing his answer, or at any 
time afterwards, if the same be intended to affect real estate, 
may file with the Clerk of each County in which the property is 
situated a notice of the pendency of the action, containing the 
names of the parties, the object of the action, aiid the descrip- 
tion of the property in that County affected thereby ; and if the 
action be for the foreclosure of a mortgage, such notice must be 
filed twenty days before judgment, and must contain the date of 



GG CODE OF CIVIL PROCEDURE 

A. D. 1894, " 

""■ — ■^^^ the mortgage, tlie parties thereto, and the time and place of 
recording the same. From the time of tiling only shall the pen- 
dency of the action he constructive notice to a purchaser or 
encumbrancer of the property aflfocted thereby ; and every per- 
son whose conveyance or encumbrance is subsequently executed 
or subsequently recorded shall be deemed a subsequent purchaser 
or encumbrancer, and shall be bound by all proceedings taken 
after the filing of such notice to the same extent as if he were 
made a party to the action. For the purposes of this Section, an 
action shall be deemed to be pending from the time of filing such 
notice ; but such notice shall be of no avail unless it shall be fol- 
lowed by the first publication of the summons, or an order there- 
for, or by the personal service thereof on a defendant within sixty 
days after such filing. And the Court in which the said action 
was commenced may. in its discretion, at any time after the action 
shall be settled, discontinued or abated, as is provided in Section 
14:2, on application of any person aggrieved, and on good cause 
shown, and on such notice as shall be directed or approved by 
the Court, order the notice authorized by this Section to be can- 
celled of record by the Clerk of any County in whose office the 
same may have been filed or recorded ; and such cancellation 
shall be made by an endorsement to that effect on the margin of 
the record, which shall refer to the order, and for which the 
Clerk shall be entitled to a fee of twenty-five cents. 

Sale of land under execution levied, before Us jiendens was filed in action to 
foreclose mortgage on it, gave good title to purchaser ; and he had right as a 
proper i)arty, by petition in the action, to contest the mortgage.— JS'x Parte 
Mobley, 19 S. C, :«7. 

Summons, by Ssc. 154. The summons may be served by the Sheriff of the 
f^^orservi^! Countv where the defendant may be found, or by any other per- 
. J^^'o^f l^- son not a party to the action. The service shall be made, and 

? 150 ; 1674, XV., . . 

MO. the summons returned, with proof of the service, to the person 

whose name is subscribed thereto, with all reasonable diligence. 
The person subscribing the summons may, at his option, by an 
endorsement on the summons, fix a time for the service thereof, 
and the service shall then be made accordingly : Provided, That 
no costs shall be taxed to any person for the service of any sum- 
mons, complaint, answer, demurrer, subpcena, or other legal 
process issuing out of the Courts of Common Pleas and Courts 
of Probate not made by the Sheriff of the County where such 
process is served, or his legally constituted deputies. 
Smith V, Walker, S. C, 109 ; Cxireton v. Dargan, 12 S. C, 122, 



OP SOUTH CAROLINA. 07 

A. D. IKKl. 

Sec. 166. 'I'lu- siiiiiiiKiiis shall lu! si'i-vc'd liy «l<-'liveriii;,' 11 coi)}- ' ^/ ' 

tliercof as follows : ^ howTmii'.' " "' 

1. If the suit bo against a corjmration, to the President or '"*""• ^'^'••*'^"- 
other head of the corporation, Secretarv, Cashier. Treasurer a !'>•: 1 « « «. 

,v- , i. 11 i. t. • ' X V III., 487; 

I'lrector, or agent tnoreoi. hervice upon any person occupying ink?, xix., ms. 
an ollice or room in any railway station, and attending to and 
transacting therein any business of any railroad, shall be deemed 
service upon the eori)oration under th(! charter of which such 
railroad is authorized by law ; and sucli person shall be deemed 
the agent of said corporation notwithstanding he may claim 
to 1)0 the agent of any otlier person or corporation claiming to 
oi)erate said railroad by virtue of any lease, contract or agree- 
ment. 

Such service can be made in respect to a foreign corporation 
only when it has property within the State, or the cause of 
action arose therein, or where such service shall be made in this 
State personally upon the President, Cashier, Treasurer, attorney 
or Secretary, or any resident agent thereof. 

Foreign corporation may appear solely to test service upon a party "as resi- 
dent agent thereof" and have service set aside.— i/esfer v. Easin Fert. Co., 33 
SS. C, ()0!t. It may waive service and submit itself to jurisdiction of Court by 
appearing generally and answering on the merits.— Chafce v. Postal Tel. Co 
:J5S. C.,372. 

2. If against a minor under the age of fourteen years, to sucli 

minor personally, and also to his father, mother or guardian ; or, 

if there be none within the State, then to any person having the 

care and control of such minor, or with whom he shall reside, or 

in whose service he shall be employed. 

Tliese requirements are positive, and the jurisdiction of an infant can only be 
obtained by pursuing this mode of service prescribed.— Fm/t'j/ v. Robert.son, 
17 S. C, 435 ; Genobles v. West, 23 S. C. 154 ; Bikci- v. Vauf/han, 23 S. C, 1S7 ; 
Wliitesides v. Barber, 24 S. C, 373; Tederall v. noukniyht,2r) S. C, -'75; 
Faust v. Faust, 31 S. C, 576. 

o. If against a person judicially declared to be of nnsound 
mind, or incapal)le of conducting his own affairs in consequence 
of habitual drunkenness, and for whom a committee or guaniian 
has been appointed, to such committee or guardian, and to the 
defendant personally. 

•i. In all other cases to the defendant personally, or to any -^ ^ ^y ^^y. 
person of discreti(m residing at the residence or oniploved at the \^'<!Ly'lli-' 

. . "^ i ' — i<I; ISfla, XXI., 

place of business of said defendant. ">«• 

Sec. 156. Where the person on whom the service of the sum- Hubiicaiionof 

nions IS to bo made cannot, alter duo diligonce, be found within lyyo, xiv., 
the State, and that fact appears by ailidavit to the satisfaction of J1J)^= '^'"' ^^''•' 



68 CODE OF CIVIL PROCEDURE 

A. D. is'^l. ' 

""" ■ ' the Court, or a Judge thereof, the Clerk of the Court of Com- 
mon Pleas, Master, or the Probate Judge of the County where 
the trial is to be had, and it in like manner appears that a cause 
of action exists against the defendant in respect to whom the 
service is to be made, or that he is a proper party to an action 
relating to real property in this State, such Court, Judge, Clerk, 
Master, or Judge of Probate, may grant an order that the senice 
be made by publication of the summons in either of the follow- 
ing cases : 1. Where the defendant is a foreign corporation, has 
property within the State, or the cause of action arose therein. 
'^. Where the defendant, being a resident of this State, has 
departed therefrom with intent to defraud his creditors or to 
avoid the service of a summons, or keeps himself concealed 
therein with the like intent. 3. Where he is not resident of 
this State, but has property therein, and the Court has jurisdic- 
tion of the subject of the action. 4. Where the subject of the 
action is real or personal property in this State, and the defend- 
ant has or claims a lien or interest actual or contingent therein, 
or the relief demanded consists wholly or partly in excluding the 
defendant from any interest or lien therein. The order shall 
direct the publication to be made in one newspaper, to be desig- 
nated by the officer before whom the application is made as most 
likely to give notice to the person to be served, and for such 
length of time as may be deemed reasonable, not less than once 
a week for six weeks. In case of publication the Court, Judge, 
Clerk, Master or Judge of Probate shall also direct a copy of 
the summons to be forthwith deposited in the postoflfice, directed 
to the person to be served at his place of residence, unless it 
appear that such residence is neither known to the party making 
the application nor can with reasonable diligence be ascertained 
by him. Where publication is ordered, personal service of the 
summons out of the State is equivalent to publication and deposit 
in the postoffice. In case of minors in like cases a similar order 
shall be made and like proceedings be had as in case of adults. 

In case of persons imprisoned in the Penitentiary or in the 
jail of any County in this State, and in case of lunatics confineil 
in the Asylum, or in any other place of confinement, persona! 
service of the summons and complaint or other process affecting: 
the rights of such persons shall be made by the Sheriff of the 
County in which such persons shall be imprisoned or confined, 
with the like proof of service as required in case of minors ; and 
thereupon the Judge of the Court of Trial Justice before whom 



OF SOUTH CAROLINA. G9 

~ A. D. I'fiH. 



the action is to be tried shall appoint some attorney or other com- 
petent person to act as guardian ad litem for any person so im- 
prisoned or confined, who shall receive out of the property of 
such persons a reasonable compensation for services rendered in 
heir behalf : and the case shall proceed as in other cases of per- 
sons not under disabilities : Provided. That in cases of persons 
imprisoned or confined as herein stated outside of this State, 
-?rvice by publication shall be deemed suflScient. 

The defendant against whom publication is ordered, or his 
representatives, on application and sufficient cause shown at any 
time before judgment, must be allowed to defend the action ; 
and the defendant against whom publication is ordered, or his 
representatives, may, in like manner, upon good cause shown, be 
allowed to defend after judgment, or at any time within one 
year after notice thereof, and within seven years after its rendi- 
tion, on such terms as may be just ; and if the defense be suc- 
cessful, and the judgment, or any part thereof, has been col- 
lected or otherwise enforced, such restitution may thereupon be 
compelled as the Court directs ; but the title to property sold 
under such judgment to a purchaser in good faith shall not be 
thereby affected. And in all cases where publication is made the 
complaint must be first filed, and the summons, as published, 
must state the time and place of such filing. 

In actions for the partition of real estate or for the foreclosure 

f mortgages on real estate, if any party or parties having any 
interest in or lien upon such mortgaged premises are unknown to 
the plaintiff, and the residence of such party or parties cannot 
with reasonable diligence be ascertained by him, and such fact 
-hall be made to appear by affidavit to the Court, a Judge, Clerk 
I f the Court, Master or Judge of Probate, where the trial is to be 
had, such Court, Judge, Clerk, Master or Judge of Probate shall 
grant an order that the summons be served on such unknown 
party or parties by publishing the same, for six weeks, once a 
week, in a newspaper printed in the County where the premises 
are situated, which publication shall be equivalent to a jH-r-onal 
-ervice on such unknown party or parties. 

This Section relates only to Court* of record. Trial Justice hasno authority 
to grant order of publication. — Fergxtson v. Gill^rrt. 17 S. C..Ji«> ; Xote. p. 29. 

In the absence of fraud or collusion, if the affidavit satisfies the officer grant- 
ing order of publication, his order is final.— i'a/*-* v. GritUey. 16 S. C. 41*J ; 
liank V. Stelling. 31 S. C. 360. 

The question of good faith cannot be made on mere motion to vacate judg- 
ment : can only be made under formal proceeding.— Yates v. Gridlry, 16 S. C, 
4i<6. 



TO CODE OF CIVIL PROCEDURE 

A. I). 1894. 

^-" — ,^'~^ Where au agreeuifut l)etween inomlK-r and foreiffii life inKurance associa- 
tion pro^^de(l that death claims should l)e made and paid at home office, the 
claims of Ix'neflriaries thereunder was not a cause of action that arose in this 
Stat*, and the foreign corporation having no property liere it could not l)e 
mode a party to action here on such claim.— /iVjr/yprs v. Afutual AKsociatiim, 
17 S. C, 4()(). But when the subject matter wus within the juris<liction of the 
Court, and the contract made as to it wliile the defendants were residents of 
this State, they can be made parties, as non-residents, by publication.— .SVim- 
mate v. Harbin, ;J5 S. C, 5'Jl. So, where all parties in interest are non-resi- 
dents, they can be so made parties in action to set aside assignment aa to real 
propertj' situate here.— Hank v. Slelliny, :J1 S. C, o<K). 

An order for service by publication is absolutely required, even where there 
is personal service or its equivalent out of the State.— /^/Arr v. Vanyhun, '£i S. 
C, 187. But w^hen publication has been ordered, personal service out of the 
State is equivalent to publication and deposit in postoffice.— Z>«r?;j/ v. Shan- 
non, 19 S. C, 52fi. Only defendant can take advantage of alleged insufficiency 
in service of summons.— 76. 

Proceedings Sec. 157. Where the action is against two or more defend- 
er defen?an^ts ants^, and the summons is served on one or more of them, but not 
nere.^^'*''^^ on all of them, the plaintifif may proceed as follows : 
1870, XIV., §159. i_ If the action be against defendants jointly indebted upon 
contract, he may proceed against the defendant served, unless 
the Court otherwise direct ; and if he recover judgment, it may 
be entered against all the defendants thus jointly indebted, so 
far only as that it may be enforced against the joint property of 
all and the separate property of the defendants served, and, if 
they are subject to arrest, against the persons of the defendants 
served. Or, 

Subdivi.sion 1 does not apply where all the parties are served. — Dulany v. 
Elford, 22 S. C, :i04. AppUed.— Tr/iii^e/rf v. Hotey, 30 S. C, 117. 

2. If the action be against defendants severally liable, he may 
proceed against the defendants served, in the same manner as if 
they were the only defendants. 

3. If all the defendants have been served, judgment may be 
taken against any or either of them severally, where the plaintiff 
would be entitled to judgment against such defendant or defend- 
ants if the action had been against them, or any of them, alone. 

4. If the name of one or more partners shall, for any cause, 
have been omitted in any action in which judgment shall have 
passed against the defendants named in the summons, and such 
omission shall not have been pleaded in such action, the plaintiff, 
in case the judgment therein shall remain unsatisfied, may, by 
action, recover of such partner separately, upon proving his joint 
liability, notwithstanding he may not have been named in the 
original action ; but the plaintiff shall have satisfaction of only 
one judgment rendered for the same cause of action. 



OF SOUTH CAROLINA. U 

A. D. lb'.U. 

Sec. 158. Ill the oases mentioned in Section 156, the service ^"""^.^ ' 

of tlie suiimioiis shall ])v deemed complete at the expiration of by puoiii'-j.tir'ii 
the tiiiir prtscrihi'd ])y the order for j)ublifiilion. ~/'/>"Vifio " 

Sec. 159. 1 'roof of the service of the siuiimoiis, and of the proofofHonirp. 
complaint or notice, if any, accompanying the same, must be as //»., sijiJ; iw<«, 

. ., ' i. J O > XVni.. 740. 

follows : 

1. If served by the Sheriff, his certificate thereof ; or, 

2. If by any other person, his affidavit thereof ; or, 

3. In case of publication, the affidavit of the printer, or his 
foreman, or principal clerk, showing the same, and an affidavit 
of a deposit of a copy of the summons in the postoffice, as re- 
quired by law, if the same shall have been deposited. AVhen the li ths e lo^o. 
service is made out of the State, after order of publication, the 

])roof of such service may be made, if within the United States, 
by affidavit before any person in this State authorized to take an 
affidavit, or before a Commissioner of Deeds for this State, or a 
Notary Public, who shall use his official seal and append thereto 
the cei'tilicate of a Clerk of a Court of record of the County in 
which he resides that he is such Notary, or before a Clerk of a 
Court of record, who shall certify the same by his official seal ; or 
if without the limits of the United States, before a Consul or 
Vice-Consul or Consular Agent of the United States, who shall 
use in his certificate his official seal. 

4. The written admission of the defendant. 

In case of service otherwise than by publication, the certifi- 
cate, affidavit or admission must state the time and place of the 
service. 

Sheriff's return of service may be rebutted by entry in his book and testi- 
mony of his deputy and party to be served.— GVnofc^-s v. West, 2:i S. C. IM. 
But under his return of service on defendant "at her residence," it will be 
presumed that such service was in the County of the venue.— Lyies v. Haskell. 
35 S. C, 301. 

Service upon proper party by misnomer is hirxiling.—Waldro}) y. Leonard, 
22 S. C, 118 ; Genobles v. \Vest, '23 S. C, 154. 

Proof of service by one other than Sheriff mu.st be by affidavit. — State v. 
Cohen, V.> S. C, 1!»S. It is not required that such certificate of Clerk of Court 
as to authority of Notary Public should be appended to the affidavit at the 
time it is taken, but it may be furnished to the Court afterwardB.— /^ohA.- v. 
steiiiiuj, :ji s. c, :i<;o. 

Written admission of the defendant is service.— .Boltoji v. Carrier. 2S S. C, 
11!>. 

Acceptance of service by an attorney having no authority so to do does not 
constitute a legal service.— /freci v. Heed, lit S. C, 548. 

Nor can infant l)iud himself bj* acceptance of service.— Fin/*'}/ v. Hobertson, 
17 S. C. 4-ri ; h'iker v. Vavi/han, 23 S. C, 187 ; Genobles v. West. Si S. C. l.VJ ; 
Whitesides v. liarber, 24 S. C., 378. Yet such acceptance, even of an incgular 
summons, by an adult without objection to proceedings thereimder estop him 
from denj-ing jurisdiction.— /Va/ei/ v. Jiobcrtson, 17 S. C, 435. 



72 CODE OF CIVIL PROCEDUBE 

A. D. IKM. 

'""''^•^'^^ Sec. 160. I'l'om the time of the service of the gummoug in a 

When Juris- • , ,. i.v. ii e • • i i ^\ r< . 

dictum of action civil iictiuii, or the allowance of a provisional remedy, the Court 
1870, XIV.. fiiiJ. is ileemed to have acquired jurisdiction and to have control of all 
the subsequent proceedings. A voluntary appearance of a defend- 
ant is ecjuivalent to personal service of the summons u\K>n liim. 

Even where no summons ha« been served, but attachment has been issued, 
the Court has jurisdiction for certain purjwses. — Darby v. Shannon, 19 S. C, 
.526. Voluntary' appearance is equivalent to personal Bervice.—State v. Cohen, 
13 S. C, 198 ; State v. Mifchrll, 21 S. C, rm ; State v. Marshall, 24 S. C, .507 ; 
Benson v. Carrier, 28 S. C, 119 ; Shumate v. Harbin, :i.5 S. C, .521. 

The voluntary appearance of an infant i.s binding upon judgment where the 
face of the proceedings fails to show his infancy. — State v. Lewis, 21 S. C. .59^. 
But if defendant appear only to object to jurisdiction because he has not been 
served, the Court is without jurisdiction. — State v. Marshall, 24 S. C, .507. 

To be equivalent to personal service it must be made before judgment. — 
State V. Cohen, I'i S. C, 19S. It may be shown by the pleadings or entry in 
Trial Justice's book ; it must be shown by the proceedings, and cannot in 
absence of such showing be proved by parol testimony.— i^arrou v. Dent, 17 H. 
C, 75. 



TITLE YI. 

OF THE PLEADINGS IX CIVIL ACTIONS. 

Chapter I. — Tlie Complaint. 

Chapter II. — Tlte Demurrer. 

Chapter III. — The Answer. 

Chapter IV. — The Reply. 

Chapter V. — General Rules of Pleading. 

Chapter VI. — Mistakes and Amendments. 



CHAPTER I. 

The Complaint. 



Sec. 
161. Forms of pleadlDgT' 
1C2. Complaint. 



Sec. 
1G3. Complaint, What to contain. 



Formsofpiead- Sec. 161. There shall be no other forms of pleading in civil 
°i/) 8108 — actions in Courts of record in this State, and no other rules by 

which the sufficiency of the pleadinfr.s is to be determined, than 

those prescribed by this Code of Procedure. 

It was intended by this Section to change materially the nature and effect 
of pleading : but not to abolish the substantial characteristics of the several 
pleadings that ai'e retained either in name or by their equivalents under other 
names. — Mobleyv. Cureton,QS. C, 49. 

Cited in ^Varren v. Lagrone, 12 S. C, 45. 



OF SOUTH (;AIJ()M\.\. 73 

" A. D. IKM. 

Sec. 162. 'riie lirst idradinij: on llio |i;ii-i nf ih,' |)l;iiiitiir is * ■' ' 

^, 1 • . Compliilnl. 

tilt' complamt. //;., unii. 

Sec. 163. Tlie coniplaiiit sliall ((tiitain — rompiuint; 

1. 'I'lic tilK' of the cause, speei lying the name of tlie Court in ''';"' "j',','J,"""' 
wliich the action is brought, the name of the County in wliich 

tlie j)hiintif[ desires the trial to l)e had, and the names of the 
parties to tlie action — plaintilf and defendant. 

2. A plain and concise statement of the facts constituting a 
cause of action, without unnecessary repetition. 

3. A demand of the relief to which the plaintiff supposes him- 
self entitled. 

The names of the individuals constituting the copartnership suing must 
api)(>arin the title.— .S'/»n7/i v. M'alkcr, d S. C, KJl). 

Subdi\-ision 'J : A cause of action exists where the legal rights of one party 
have been invaded by another. — C7i«/(»it'/'.s v. Glenn, 18 S. C, 40'.} ; Xance v. 
Ji. li. , :i5 S. C. , ■My.K If the facts alleged do not show the existence and inva- 
sion of such rights, the complaint is defective, and will be held bad on de- 
murrer. — Southern Porcelain Co. v. Theiv, 5 S. C, 5 ; Chalmers v. G'lcnyi, IS S. 
C, 4(i'.) ; Nance v. R. R. Co., ^5 S. C, 309. 

But it is enough if the allegations .show distinctly the cause of action. — 
Hammond v. R. R. Co., fi S. C, KiO. The Court refers the facts to their appro- 
priate form of action. — Mason v. Carter, 8 S. C, 10:5 ; Warren v. Layrone, 12 
S. C.,4r>. 

The complaint is so defective if it merely allege conclusions of law and not 
facts.— Th^^ v. R. R. Co., 33 S. C, 216 ; Wallace v. R. R. Co.,M S. C, 62 ; 
Nance v. R. R. Co., 3.5 S. C, 307. 

In action for specific performance of contract for sale of land, it is not neces- 
sary to allege that contract was in writing. — Hubbell v. Courtney, 5 S. C, 87. 

In action against a commission merchant for account, it is unnecessary to 
allege a demand for account, after stating a refusal to do so. — Ma.son v. Car- 
ter, 8 S. C, 103. Where paper sued on as a promissory note Ls not such, but 
the allegations show a cause of action, the complaint is sufficient. — Doicie v. 
Joi/ner, 25 S. C, 123. 

^Vant of probable cause should be alleged in a complaint in action for mali- 
cious arrest or it will be demurrable.— //of/(/ v. I'iiicknei/, Itl S. C, 3S7. 

Subdivision 3 : Complaint is not demun-able as defective in not stating facts 
sufficient to constitute a cause of action beciiuse it contains no prayer for re- 
lief.— Balle V. Mosely, 13 S. C, 439. 



CHAPTER II. 

The Demurrer. 



Skc. 

Ii!J. ni'fonfiaiit to (Icimir or answor. 

Iti."). Wlicn tilt' ticfi'iidant iiiiiy ilcniur. 

inc. Deimirrcr, what to spe<"lf.v. 



Skc. 
HIT. Hon- to proceed, If coiupluint lK» 

uiiu-nded. 
liw. ObJiM'tlon not appearlna on complaint. 
ItiO. objection, when waived. 



Section 164. I'lii-* onlv pleading on the part of the defend- D.'f.nuinnt to 

., , ' , ., i-i- demur o r a D- 

aiit IS either a (leiiiurrer or an answer. Jt must be served witliin swn. 
twenty days after the service of the copy of the complaint. ife.". xn.. sioo. 



74 CODE OF CIVIL PROCEDURE 

A. D. IKtiJ. ~~ " 

"■" ^^ ' Sec. 165. I'lie defendant may demur to the complaint when 

When Uic do- •, • ,■ i.i r xi i- -^i 

fendaut may lit- it shall appear upon the face tliereof, either — 

"ih.^iinr. — ^' '^^^'-^^ ^'^c Court lias no jurisdiction of the ])erson of the 

defendant or the subject of the action ; or, 

'^. That the plaintilT has not leiral capacity to sue ; or, 

This ground of objection is waivtHi unless taken by demurrer.— Z>an»V/« v. 
Moses, 12 S. C, im 

Where complaint alleges corporate existence in plaintiff and nothing appears 
on its face to show his want of coriwrate authority, it is not demurrable on 
this ground.— C/ifj-aw li. li. v. White, 14 S. C, .51. Where sealed note payable 
to an administrator has been transfen-ed to another, it may be sued on in 
name of administrator for use of the other. — Cnrroll v. Still, i:i S. C, 4:i0. 

This question of capacity to sue cannot be put in issue by general denial ; it 
must be made by demurrer. — Commercial Co. v. Turner, « S. C.,110; Pal- 
metto V. Risley, 25 S, C, oO'J ; Steamship Co. v. Rodger s, 21 S. C, 27. 

3. That there is another action pending between the same par- 
ties, for the same cause ; or, 

4. That there is a defect of parties, plaintiff or defendant : or, 

This ground caimot apply in case misjoinder of parties.— Loirry v. Jackson. 
27 S. C.,818. 

This objection must be made by demurrer, and is waived upon failure to 
demur. — Feutherston v. Xorris, 7 S. C. 472 ; Evans v. McLuca.% 12 S. C, 5() : 
Danielsv. Moses, 12 S. C, 13 ; lioss v. Under, 12 S. C, 5i»2. 

6. That several causes of action have been improperly united ; 
or. 

Joint demurrer bad as to all, must fail though good as to one who joins. — 
Lotvry v. Jackson, 27 S. C, 318. 

Complaint not demurrable for multifariousness where it alleges breach of 
trust, becaiise it makes a party in possession of the assets under the breach, 
with notice, a defendant.— i?ar/sda/e v. Holme.s, 1 S. C, ill ; Melton v. Withers, 
2 S. G., 501. 

Objection to complaint on this ground can only be taken by demurrer.— 
Field V. Hurst, '.) S. C, 277. It may be taken by any defendant.— i'l/^cr v. 
Allen, 13 S. C, 317. 

Where there is improper joinder of causes of action, and a demurrer to the 
complaint therefor, the plaintiff may cure the defect by voluntary amend- 
ment of the complaint. — Sullivan v. Sullivan. 24 S. C, 474. 

Demurrer on this ground will not lie where several plaintiffs, severally own- 
ing adjoining tracts of land, join in action for dam.iges in solido for injuries 
thereto by defendant's dam.— Hellnms v. Su-itzer, 24 S. C, 31). But demurrer 
will lie in such ca.se, where the injuries are seiwirate and distinct.—/^. 

There is not misjoinder of causes of actions where adult ward and three 
minor wards sue their guardian for accounting.— 67fl//i>u/.s v. Barrett, 2<i S. C. 
474. This objection does not apply where creditor sues heir in pos.session df 
intestate's laud and sdleges .sufficient to show cause of action against adminis- 
trator, and does not seek judgment against him.— Lowry v. Jackson, 27 S. C, 
318. 

G. That the complaint does not state facts suflBcient to consti- 
tute a cause of action. 



OF SOUTH CAKOLIXA. 



A. D. I»)t. 



UntU it does appear that some fact is omitted which is necessary to const:- - - 
tute the cauHo Of action, no demurrer can be smtaiued.—BalU- v. Mosdy, y.i S. 

The defect must be substantial, and such as cannot be cured except by alle- 
gations of answer.— r/i I We r.s v. Vcrnei; 12S. ("., 1. 

AMieix- administrator of a distributee .>f an iutestate brings action against 
the adnunistrator of the intesUite and joins with him as plaintiff a distribu- 
tee of such distributee, the complaint is demurraine as to such plaintiff dis- 
tributee on this f^ound. — Ii'f ibfft v. Johns, 10 S. C, 101. 

Complaint alleged subscription by defendant to stock of plaintiff of fifty 
acres of land, and a refusal to convey, and demanded paj-ment in money for 
the land, without alleging promise to pay money or previous demand. an<l 
was held not demurrable on this ground.— C/j*- raw; and Chester li. It. Co. v. 
Garland, 14 S. C, (W. In action to recover money won at game of faro, if the 
complaint does not allege that the money was won at one time and sittmg, it 
is demnnable on this ground.— TruHifoo v. Finley, 18 S. C, 305. 

Sec. 166. The demurrer shall distinctly specify the grounds Demurrer, 
of ohjcctiou to the complaint. Unless it do so, it may be disre- ^y^TTT^^" 
gardcd. It may be taken to the whole complaint, or to any of 
the alleged causes of action stated therein. 

A demurrer that does not distinctly specify the grounds of objection, but 
states them hypothetically, may be disregarded.— Carro/^ v. Still, 13 S. C.', 430. 

Sec. 167. If the complaint be amended, a copy thereof must How to pro- 
be served on the defendant, who must answer it within twenty pfa In tTe' 
days ; or the plaintiif, upon filing with the Clerk due proof of the "T°*^fioj, — 
service and of the defendant's omission, may proceed to obtain 
judgment, as provided by Section 267. 

Sec. 168. When any of the matters enumerated in Section objection not 
l'J5 do nut appear upon the face of the complaint, the objection cS^ll^^ 
may be taken by answer. ih.,ii7o. 

If such matters do not clearly appear upon the face of the comphiint. the 
objection should be made by amwer.— Patterson v. Fayan, IS S. C, oS4. 

Sec. 169. If no such objection be taken, either by demurrer objection, 
or answer, the defendant shall be deemed to have waived the ""7/? Tin*^'" 
same, excepting only the objection to the jurisdiction of the 
Court, and the objection that the complaint does not state facts 
sufficient to constitute a cause of action. 

The clear intention of this and foregoing Secti<ms of this Chapter is that de- 
fendant .shall give, by his demurrer or answer, specific notice that he intends 
to rely on one or more of these specific defenses, if he ^^ishes to make theni 
available. A general denial of all the facts alleged in the complaint is not a 
compliance with these re<iuiremeuts. The object of them is to relieve the 
plaintiff from the necessity of preparing to meet such objections, on trial, un- 
less so notified of thexn.—Steamshii) Co. v. Jiodycrs, 21 S. C, 27 ; Palmetto Co 
V. liishii, 25 S. C. :iOS). 

Objection for defect of parties comes too late after failure to make it by de- 
murrer or answer.— /•Vo//i<;-.s7on v. Norri.t,! S. C, 472; Evans \. MvLucas, 
12 S. C, 5(j ; Daniels v. Moses, 12 S. C, 137 ; lioss v. Under, 12 S C .VJ'' 
6 



7(1 CODE OF CIVIL PROCEDURE 

A. D. 181M. 

^— — Y'-^-' All other defects, except want of jurisdiction and of gufflciont statements of 
facts, are cured by failure to object by demurrer and answer. — Howden v. 
Winsuiith. 11 S. C, 4()'.i : Dunirls v. Mosrs, V2 S. C, i:«). 

Objection that complaint does not state facts sufficient to constitute a cause 
of action niiiy be made orally at any stafje of the proceeding*.— .S'out/»«r» 
Porcelain Co. v. Theii\r) S. C. 10 ; HoimU-n v. Wimtmith, 11 S. C. Wi ; Chil- 
ders V. Verner, V2 S. C. 1 ; Ballc v. Moscly, V.i S. C, 4.7.1 ; Kennertij v. Etiwan 
Co., 17 S. C, 411 ; Daris v. Mclhiffie, IS S. C, 4'.« : HeUants v. Suitzer, 2i 8. 
C, 39 ; Hull V. Yomig. '29 S. C. M. 

So oral demurrer to answer sotting ui) counter-claims may be made on the 
gi'ound of want of cause of action, though n(;t objected by formal demurrer or 
answer. — State v. Corbin, 1(5 S. C, 5!i3. 



CHAPTER III. 

The Answer. 



to contain. 
ISrO, XIV., §172^ 



SEC I Sec. 

170. Answer, what to contain. j 173. Sham and Irrelevant defenses to be 

171. Counter-claim. Several defenses. stricken out. 

172. Demiurer and answer, when allowed. ; 

Answer, what Sectioil 170. The answer of the defendant must contain : 

1. A general or specific denial of each material allegation of 
the complaint controverted by the defendant, or of any knowl- 
edge or information thereof suflBcient to form a belief. 

2. A statement of any new matter constituting a defense by 
counter-claim, in ordinary and concise language, without repeti- 
tion. 

Allegations of the complaint not denied are admitted. — Addison v. Duncan, 
3.5 S. C, KJo. An.swer admitting the simple delivery of note, as alleged in 
complaint, and then as.serting that the delivery was conditional, the deliverj' 
is not admitted. — Lipscomb v. Lipscomb, ',^2 S. C, ~48. 

Where complaint alleges and answer admits note sued on to be a promis- 
sory note, it was error to grant nonsuit upon proof that note was under seal. 
— Moore v. Christian, 31 S. C, 337. 

The Code has enlarged the defendant's opportunity for making various de- 
fen.ses to the action by his answer.— fo/i/-s v. Fraser, 5 S. C, •irtl. 

The answer is not to be taken as true, as under former equity practice, tmtil 
the plaintiff has had an opportunity to controvert it. — Hubbcll v. Courtney, 
5 S. C, 87. 

The defendant must plead in answer all his defenses, legal or equitable ; he 
cannot bring a separate action on any matter that could have been so pleaded. 
—McAlilu V. liarher. 4 S. C, 4S ; Rice v. Mahaffy, 9 S. C. 58-'. 

And his answer must contain a general or specific denial, or new matter, 
constituting a defen.se or counter-claim. — (Voxoi/ v. Riley, 'JJl S. C. 2St). But 
under general denial he may insist on absence of demand. — liurckhalter v. 
Mitchell, 27 S. C, 24. Yet general denial raises no i.ssue of failure of con- 
sideration, which is an affirmative defen.se.— /)«'r»-i/ v. Hoi man, 21 S. C, (>'21. 

A general denial will not put at issue the legal capacity of cori>oration to sue. 
—Commercial Co. v. Turner, S S. C. HI ; Steamship Co. v. Roihjers, 21 S. C.,33fl 



OF SOTTH CAI.'OLINA. 77 

A. D. ISM. 

Pahnpftn Co. v. RisUy, 25 S. C, 809 ; American Co. v. Hill, 27 S. C. 104 ; Land ^^ ' 

Co. V. William}!, :J5 S. ('., :}tl7. But whore tho complaint ajjainst a corpcru- 
tion allogort it to bs inwirporatoil, ami its answer makes only ^oneral denial, 
and it re.w'ulnrly appaara by attorney and defends on the merits, that is ad- 
midJiion of its corporate charter. — /i'cj/i^r>-/ v. l{. h'., :il S. C, :«):». And where 
there is a specific denial of the allegation of partnership, the answer raises an 
issue triable by jury. -Km- v. Corhnni, 2U S. C, (11. But it will put at issue 
every fact necessary to prove plaintiff's claim and allow defendant to contro- 
vert his proof thereon.— L///('.s v. liollrs, 8 S. C, 258. And upon plaintiff's fail- 
ure to prove his case, the defendant may have a nonsuit.— //<. The simple 
answer of " no knowledjje " is a demii[. — Tharin v. Scnbvooh; « S. C. lis. 

Payment must be specially pleatlod.— .Vc/^/iirc v. Hittchinson, 10 S. C. 4:«. 

But where certain credits are allowed by complaint, and judgment claimed 
for special balance, the defendant, under general denial, can prove other pay- 
ments to show true balance. — //;. 

Where answer in action for assault and batterj' admitted the complaint, but 
pleaded that the defendant committed the assault in self-defense, it wa.s suffi- 
cient.— /fi*. 7/1 c.s v. Kcllar, 84 S. C, 208. Plea of confession and avoidance does 
not establish issues raised by general denial.— ,S7 ««/(■;/ v. Shuolhred 2.5 S C 
181. 

Where matter of counter-claim is not so pleaded, and judgment thereon de- 
manded, it can only serve as a defense, and not as a counter-claim.— rr/onjiier 
V. Thompson, 10 S. C, 185; Humbert y. BHsbane, 25 S. C, 50«. And as a 
oouter-claim, cannot be proved at trial.- 5^w/Kfa)i v. Byrne, 10 S. C, i;30 ; 
Williams v. Irbij, 15 S. C, 4.58. 

No objection to answer that it is not responsive to complaint ; its only effect 
is that any allegation not denied stands admitted.— Zi»i»ic?-»m7i v ■imaker 
lOS. C.,100. 

Sec. 171. The counter-claim mentioned in tlie last Section counter-riairo: 
must be one existing in favor of a defendant and against a feUes^*""' "'''' 
plaintiff, between whom a several judgment might be had in -rb-fiiTS. 
the action, and arising out of one of the following causes of 
action : 

1. A cause of action arising out of the contract or transaction 
set forth in the complaint as the foundation of the plaintiff's 
claim, or connected Avith the subject of the action. 

2. In an action arising on contract, any other cause of action 
arising also on contract, and existing at the commencement of 
the action. 

The defendant may set forth by answer as many defenses and 
counter-claims as he may have, whether they be such as have 
been heretofore denominated legal or equitable, or both. 'J'hey 
must each be separately stated, aiul refer to the causes of action 
which they are intended to answer, in such manner that they 
may be intelligibly distinguished. 

In action by executor to recover from defendant several notes due testator. 
he cannot set up as counter-claims legacies given him, but unassenteil to by 
Gxecxiior. — Latimer v. Sullivan. .SO S. C, 111. 

A di'fendant cannot set up as counter-claim a debt purchased by him after 
commencement of the action.— A'«/fr v. Quecsc, 30 S. C, 120. 



7H CODE OF CIVIL PROCEDURE 

A. D. 18»J. 

" 1-'-~-' A counter-claim for damages from tort cannot be set up against an action 

for damages from tort.— Si'»iA-in.s v. li. li., 20 S. C, aW. 

A tort arising out of contract may be waived, and the same cause of action 
treated as a contract and set up as such, by way of counter-claim to action on 
another contract. — Boyce v. Parker, 11 S. C, SJT.— Unascertained damages 
jirising ex contractu are admi.ssible as a counter-claim. — Jb. 

In action for diiniages by trespass, the defendant cannot set up a debt due 
by i^laintiff, as counter-claim. — Shai-p v. Kinsman, IS S. C, lOS. 

A claim that does not fall under either of the above subdivisions cannot be 
set up as a counter-claim.— J57x Parte Hank, IS S. C, 280 ; Copeland v. Young, 
21 S. C, 27r) ; Humbert v. Brisbane, 25 S. C, 50G. 

A counter-claim cannot be interposed in an action for recovery of personal 
property.- 1^^7/^■a»l.? v. Irby, 1.5 S. C, .oOl ; Talbot v. Padgett, :J0 S. C, KiT. 

Partnership account in favor of defendant may be set up as counter-claim 
to his indi\adual debt, if partnership be unsettled and uix>n settlement a bal- 
ance would be due him. — Mills v. Carnier, 30 S. C, (517. 

A separate judgment in favor of one of several defendants may be given on 
a counter-claim, sho\ving a separate cause of action in his favor.— P/j/cr v^ 
Parker, 10 S. C, 465. 

Defendant cannot set up against plaintiff, as counter-claim, a debt due the 
defendant by firm of which plaintiff is a member. — Byrd v. Charles, 3 S. C, 
852. 

The answer may set forth many and inconsistent defenses, either legal or 
equitable. — Cohrs v. Fraser, 5 S. C, 354 ; Mobley v. Cureton, 6 S. C, fVS ; 
Cooper V. Smith, 16 S. C, 331. K he fail upon one, he may fall back on the 
others. — Ransom v. Anderson, 9 S. C, 440. 

A plea of Statute of Limitations to the " money items"' set up in a complaint, 
stating two causes of action, one of which was for a sum of money made up 
of several items and the other for a penaltj', was not sufficient as a defense to 
the second cause of action. — County v. Miller, 16 S. C, 244. 

Demurrerand Sec. 172. The defendant may demur to one or more of seve- 

answer, when, «. , , -, • ,i t • ■, i 

allowed. ral causes of action stated m the complaint, and answer the resi- 



Jh., §174, 



due. 



Sham and ir- Sec. 173. Sham and irrelevant answers and defenses may be 
fenses to be strickcn out 071 motion, and upon such terms as the Court may, 

stricken out. . . ^ , . . . . 

- j/,.7si75.~~ in its discretion, impose. 

An answer making general denial cannot be stricken out as sham, whether 
verified or not. — Ransom v. Anderson, 9 S. C, 4;^. 

Motion to so strike out such pleadings should not in terms demand judg- 
ment ; but if nothing remains of the answer for trial, after motion is granted, 
judgment may be pronounced at once. — Tharin v. Si'abrook, 6 S. C, 113. 

Such motions ordinarilj' present questions of fact to be determined upon 
affida\'its or as the Court may direct.— /i». 

If the defense is manifestly false and intended to delay, it may be struck 
out ; but this should be done only in cases free from doubt. — lb. 

An answer is not untrue which has been sustained on Circuit.— //a// v. 
Woodward, 30 8. C, .564. 



OF SOUTH CAROLINA. 

CHAPTER IV. 
In Reply. 



ro 



A. D. 18!H. 



SKr. 

174. llpply. Domnrror to nnswcr. 

175. Motion for jiKlKOiuiit upon iiuswer. 



SKC. 

1)0. Demun-pr t4) reply. 



Section 174. Winn the answer contains new matter consti- Repiy:(ic- 

tutino^ a oountor-claiin, the plaintilT may, witliin twenty days, Hwei\ '_ 

reply to such new matter, denying generally or specifically each ^''••••7'''- 
allegation controverted by him, or any knowledge or information 
thereof suftioient to form a belief ; and he may allege, in ordinary 
and concise language, without repetition, any new matter, not 
inconsistent with the complaint, constituting a defense to such 
now matter in the answer ; and the plaintiff may. in all cases, 
demur to an answer containing new matter, where, upon its 
face, it does not constitute a counter-claim or defense ; and the 
plaintiff may demur to one or more of such defenses or counter- 
claims, and reply to the residue of the counter-claims. 

And in other cases, where an answer contains new matter con- 
stituting a defense by way of avoidance, the Court may, in its 
discretion, on the defendant's motion, require a reply to such 
new matter ; and in that case the reply shall be subject to the 
same rules as a repl}^ to a counter-claim. 

The plaintiff's reply must deny the counter-claim or allege some new matter 
as defense thereto, or judgment will go against him for the counter-claim. — 
Hubbcll V. Coxtrtney, 5 S. C, 89 ; Latimer v. Sullivan, :^0 S. C, 111. 

A general denial of a counter-claim puts in issue all the allegations upon 
which it rested. — Atlantic Co. v. Sullivan, ;54 S. C, tSOl. 

When answer upon it.s face does not show matter constituting a counter- 
claim or defense it is demiurable.— 67<'»)f>i/ v. Uilcy, 2',) S. C, ~8() ; Lipscomb 
V. Lipscomb, 32 S. C, 243. But it may be replied to and determined at same 
time.— Latimer v. Sullivan, 30 S. C, 111 ; Talbert v. Padgett, 30 S. C, 1G7. 

A reply without an order of CVnu-t and alleging no counter-claim is improj)er ; 
but should not he formally stricken out. — Davis v. Schmiilt, '22 S. C, V2S. 

Counter-claim set up in jinswer, served with motion for leave to file, is ad- 
mitted, if not replied to within the tima.— Sanders v. Sanders, 31 S. C, t'M. 

Whei'e answer sets up i)ayment and laches Jis defenses, it Ls demiuTJible 
when the facts set forth as proof thereof aro in.su fficieut to determine the de- 
fenses.— .Vo We j/ V. Cureton, (i 8. C, 4'J. An objection that the answer is not 
responsive to the complaint cannot bo tiikeu under the Code.— Zimmerman v. 
Amaker, 10 S. C, UH. 

Sec. 175. If the answer contain a statement of new matter Motion for 

,•,,. , ,. -, ,, i'.fri.i, 1 Jiidtrnient upon 

constituting a counter-claim, and the plaintiff fail to reply, or answer. 

demur thereto within the time prescribed by law, the defendant '*'''^' xiv.. firr. 
may move, on a notice of not less than ten days, for such judg- 
ment as he is entitled to upon such statement ; and if the case 
require it, a writ of iiiquiry of daiiiagos may be issued. 



80 CODE OF CIVIL PROCEDURE 

A. D. IKM. ■ 

'" ''^ ' Sec. 176. If a reply of the plaintiff to any defense set up by 

reply. the answer of the defendant be insufficient, the defendant may 

/b..8i78. demur thereto, and shall state the grounds thereof. 



CHAPTER V. 
General Rules of Pleading. 

Sec. j Sec. 

177. Pleadings to be subscribed and veii- 1S4. Private statutes, bow to be pleaded, 
fled. 185. Libel and slander, bow stated In com- 

178. Pleadings, how verlfled. plaint. 

179. How to state an account In pleading, j 186. Answer In such cases. 

180. Pleadings to be liberally construed. ! 187. Answer in action to recover property 

181. Irrelevant or redundant matter to be distrained for damage. 

stricken out, and Indeflnlte matter 188. What causes of action may be Joined, 

made more deflnlte. i 189. Allegation not denied, when to l>e 

182. Judgment, how to be pleaded. i deemed true. 
198. Conditions precedent, how to be 

pleaded. ' 

Pleadings to Sectioil 177. Every pleading in a Court of record must be 
^d^verifled!"^'^ Subscribed by the party or his attorney ; and when any pleading 

/b., 3179. is verified, every subsequent pleading, except a demurrer, must 
be verified also. 

Pleadings- Ssc. 178. The verification must be to the effect that the same 
— ^— ^^- — is true to the knowledge of the person making it, except as to 
those matters stated on information and belief, and as to those 
matters he believes it to be true ; and must be by the affidavit 
of the party, or, if there be several parties united in interest, and 
pleading together, by one at least of such parties acquainted with 
the facts, if such party be within the County where the attorney 
resides, and capable of making the affidavit. The affidavit may 
also be made by the agent or attorney, if the action or defense 
be founded upon a written instrument for the payment of money 
only, and such instrument be in the possession of the agent or 
attorney, or if all the material allegations of the pleading be 
within the personal knowledge of the agent or attorney. When 
the pleading is verified by any other person than the party, he 
shall set forth in the affidavit his knowledge, or the grounds of 
his belief, on the subject, and the reasons why it is not made by 
the party. When a corporation is a party, the verification may 
be made by any officer thereof ; and when the .State, or any 
officer thereof in its behalf, is a party, the verification may be 
made by any person acquainted with the facts. The verification 



I 



OF SOUTH CAIfoLIN A. 81 

A. D. JWM. 

may ho ()iiiittt.'(l wlicii an admission nl" tlK-tnitli of the ailffration ""— ^.'""^ 
mii^ht subject the i)arty to ])r().si.'ciiti()n for fi-lony. And no 
l)k'ailing cun be used in a criminal prosuoution against the party 
as a proof of a fact admitted or alleged in such pleading : Pr<i- 
vidcil. That the veritication of any ])lea(ling in any (Jourt of 
record in this State may be omitted in all cases where the l)arty 
called upon to verify would be ])rivileged from testifying as a 
witness to the truth of any matter denied by such pleading. 

When matters are pleaded iipon kiiowledKe, it is unnecessjiry to add the 
words "on information and belief."— .S';(ia//.s v. Wilcler, (» S. C, 4()'J. So, where 
it is upon information and belief, it is unnecessary to state that it is upon 
knowledge. — / 1>. 

\\Tiere the answer is negative merely of the complaint, the sjime form of 
verification is neccssarj'. — lb. 

Whore the complaint does not state which of its allegations are made on 
knowledge and which on information and belief, the verification is insufficient 
in form if it say that " the complaint is tnie of his own knowledge, except as 
to matters therein stated on information and belief, and as to those matters 
he believes it to be true.''''— Hecht v. Frieslcbcn, 2S S. C, 181; Burnestcr v. 
Moschj, :« S. C, 251. 

Where the verification is made by another than the party, it must set forth 
his knowledge or the gi'ounds of his belief with sufficient clearness.— 76. 

An attorney may verif j- a complaint onlj- in two cases : 1. Where the action 
is founded upon a written instrument and for payment of money only, and 
that instrument is in his possession ; and, 2. \Vhereall the material allegations 
are within his personal knowledge.— 77ec/i( v. Fnesleben, 28 S. C, 181. 

Sec. 179. It shall not be necessary for a party to set forth in how to state 
a pleading tlie items of an account therein alleged ; but he shall pleading."" 
deliver to the adverse party, within ten days after a demand ^'"'''' ^^•' ^''*^- 
tlierefor in writing, a copy of the account, which, if the pleading 
is verified, must be verified by his own oath, or that of his agent 
or attorney, if within the personal knowledge of such agent or 
attorney, to the effect that he believes it to be true, or be pre- 
cluded from giving evidence thereof. The Court, or a Judge 
tliereof, may order a further account, when the one delivered is 
defective, and the Court may in all cases order a bill of particu- 
lars of the claim of either party to be furnislicd. 

Defendant having failed to demand an itemized account, he cannot complain 
of the judgment upon the ground that the account was not itemized.— ^7(((»H 
V. Westjield, 17 S. C, 581). 

Sec. 180. Ill the construction of a i)leading for the puri)ose 

' '^ ' ' PNnnllnpi to 

of determining its elfect, its allegations shall be liberallv con- lK'llb«•^ullyl■ou- 
'- '. stnif*!. 
strued, witii a view of substantial justice between the parties. //>.. nsi. 

Pleading must not be constnied strongly against pleader.— (7n7(/c;-.s v. \'rr- 
ncr, 12 y. C, 1 ; Tr<(//i(tT v. Lark, 1,' y. C, 570 ; Douif v. Joyncr, 2oi>. (.".. I'-i*}. 



82 CODE OF CIVIL i'KOCEDURE 

A. I). \^'-n. 

*•- -r""""^ But the liberality so allowed does not permit allegations of fact in the alter- 
native. — Isonan v. McMilhin, 'M S. C, '2H. 

Irrelevant or Sec. 181. H irrelevant or redumliiiit matter l)e inserted in a 
tertoLe strick- p'f'iiuing, it muv be sti'icKen out, on motion <ji any i)erson 
deiinite "iiiatu^r agj^rieved thereby. And when the allegations of a pleading are 
d" Unite. '" ° "^ ^ so indefinite or uncertain that the precise nature of the charge or 

/ft., 8183. defense is not a])parc'nt, the Court may require the pleading to 
be made definite and certain by amendment. 

Irrelevant matter in pleading is that which has no substantial relation to the 
issue, and properly stricken out on motion. — Nivhols v. Uni/ya, 18 S. C, -iT.i. 

If complaint is defective in mode of statement, the remedy is by motion to 
make allegations certain and not by CmmuiTeT.—Flenniken v. Jiuchanan, 21 
S. C, 4'U. And such motion should be made before trial. — Zimmennun v. 
McMakin, 22 S. C, .37.5. 

If averments of answer are somewhat indefinite and imcertain, the remedy 
is vmder this Section by motion, and not by demurrer.— 3/o?;/pj/ v. Cureton, 
«) S. C, 49 ; Dowie v. Joyner, 2.5 S. C, 123. 

If description of premises is not sufficiently particular, the objection must 
be made by motion to have it made so. — Chihlers v. Verner, 12 S. C, 1. 
Motions to have pleadings made definite and certain should be made before 
answer.— ZJowdeji v. Winsmith, 11 S. C, 409. If not made in due time it is 
waived. — lb. 

When the complaint fails to state each of several causes of action, separately, 
it is a vice in pleading ; but must be remedied, by motion to make more defi- 
nite and certain. — Hellams v. Switzer, 24 S. C, 39 ; Westlake v. Farrow, 34 S. 
C, 270. 

If defense and counter-claim are improperly united, motion to make more 
distinct, and not demurrer, is the remedy.— .VcCoifn v. McStvem, 2'.> S. C, 130. 

If several notes are sued on as one cause of action, and if the allegation is im- 
* perfect or informal, such motion, and not demuiTer, is the remedy.— Holland v. 
Kern J), 27 S. C, 623. 

If plaintiffs are not sufficiently referred to in complaint, motion to make 
more definite is the remedy. — Chapman v. City, 28 S. C, 373. 

Judgment, how Sec. 182. In pleading a judgment, or othcr determination of 
"//iVw! ~ ^ Court or otScer of special jurisdiction, it shall not be necessary 
to state the facts conferring jurisdiction, but such judgment or 
determination may be stated to have been duly given or made. 
If such allegation be controverted, the party pleading shall be 
bound to establish on the trial the facts conferring jurisdiction. 
Conditions Sec. 183. In pleading the performance of conditions prece- 
uibep?Sided?^_ dent ill a contract, it shall not be necessary to state the facts 
1870, XIV,, 8185. showing such performance ; but it may be stated generally that 
the party duly performed all the conditions on his part ; and if 
such allegation be controverted, the })arty pleading shall be 
bound to establish, on the trial, the facts showing such perform- 
ance. In an action or defense founded upon an instrument for 
the payment of money only, it shall be sufficient for a party to 
give a copy of the instrument, and to state that there is due to 



OF SOUTH CAROLINA. 




liiiii tluMTDii finiii ihc adverse party a spccirK'd sum. wliicli he 
claiins. 

Sec. 184. Ill plt'iKliu^ a private Ktatuto, or a ri^lit derived Privnto utat- 
llifnrroin, it shall be sullieient to refer to such statute hy its pitau'it-d'. 
titl(> and the day of its passage, and the Court shall thereupon ^''- '•■'^**- 
take judieial notice thereof. 
Referred to.— A'. li. Co. v. White, 14 S. C, 51. 

Sec. 185. In action for libel or slander, it shall not be neces- lhx-i ami Hinn- 

sary to state, in the complaint, any extrinsic facts for the pur- inrurMpiaint; 

pose of showing the application to the plaintilT of the defania- ^''•<"«7- 
tory matter out of which the cause of action arose ; but it shall 
be sufficient to state generally that the same was published or 
spoken concerning the plaintiff ; and if such allegation be con- 
troverted, the plaintiff shall be bound to establish, on trial, that 
it was so published or spoken. 

An allegation that defendant, at a certain time and place, slandered plain- 
tifif, by sajing that he had sworn lies at a certain time and place, and in a 
named cause, states facts sufficient.— 2ri»n)ic?'»joji v. McMakin, 22 S. C, ;i70. 
And where the worda of slander proved at trial are not the t^ame as but simi- 
lar to those alleged, it is for the jury to say whether they meant thesame.— / f^. 

Sec. 186. Ill the actions mentioned in the last Section, the Answer in 

. Ill ^ f ^ such cases. 

defendant may, in his ansAver, allege both the truth of the mat- jb., I'ltss. 

ter charged as defamatory and any mitigating circumstances, to 
reduce the amount of damages ; and whether he prove the jus- 
tification or not, he may give, in evidence, the mitigating cir- • 
cumstances. 

It may be that defendant can introduce evidence to show his belief in the 
truth of the charge made, in mitigation of damages. — Finch v. Finch, 21 S. C, 
342. 

Whether defendant sustain his plea of justification, the jury may consider 
the evidence of mitigating circumstances. — Burckhaltei-v. Coward, 16S. C, 
430. 

Sec. 187. In an action to recover the possession of property Answurinac- 
distrained doing damage, an answer that the defendant, or per- pnM>t''rtT'ai-^- 
son l)y whose command he acted, was lawfully possessed of the 1,^^"*^''^'"'^""^" 
real {)roperty upon which the distress was made, and that the ib.,ti«i. 
property distrained was at the time doing damage thereon, shall 
be good, Avithout setting forth the title to such real property. 

Sec. 188 The i)laintiff may unite in the same complaint wiint cau»ps 

n ■ 11*11 1 1 1-1 f*' ucUon may to 

several causes of action, whether tliey be such as have been liere- loined. 

tofore denominated legal or equitable, or both, where they all ^ ''••"*• 
arise out of — 



84 CODE OF CIVIL PliOCEDURE 

A. D. lS5t4. 



1. The same transaction, or transactions connected with the 
same subject of action ; or, 

2. Contract, express or implied ; or. 

3. Injuries, with or without force, to person and property, or 
either ; or, 

4. Injuries to character ; or, 

5. Chiims to recover real property, with or witliout damages 
for the withholding thereof^ and the rents and profits of the 
same ; or, 

6. Claims to recover personal property, with or without dam- 
ages for the withholding thereof ; or, 

7. Claims against a trustee, by virtue of a contract, or by 
operation of law. 

But these causes of action so united must all belong to one of 
these classes, and, except in actions for the foreclosure of mort- 
gages^ must affect all the parties to the action, and not require 
different places of trial, and must be separately stated. 

In actions to foreclose mortgages, the Court shall have power 
to adjudge and direct the payment by the mortgagor of any resi- 
due of the mortgage debt that ma}' remain unsatisfied after a 
sale of the mortgaged premises, in cases in which the mortgagor 
shall be personally liable for the debt secured by such mortgage ; 
and if the mortgage debt be secured by the covenant or obliga- 
tion of any person other than the mortgagor, the plaintiff may 
make such person a party to the action, and the Court may ad- 
judge payment of the residue of such debt remaining unsatisfied 
after a sale of the mortgaged premises against such other person, 
and may enforce such judgment as in other cases. 

There is a limit to this union of causes of action. — Hellams v. Switzer, 24 S. 
C. , 39. To be a cause of action the matter must be stated in a separate and 
distinct division of the comi)laint, in such manner that each di\Tsion alone 
might be the subject of an independent action. — lb.; Hammond v. li. A'.. 15 
S. C, 10. Such failure to so state each cause of action separately is a vice in 
pleading, but only to be remedied by motion to make more definite and cer- 
tain.— i/p//o»?is v. Switzer, 24 S. C, 3i). 

Action against administrators, their sureties and personal representatives, 
for account and settlement of the estate of intestate, which made a party de- 
fendant, who was alleged to claim the land of the intestate, was held to he 
multifarious as to that y^arty. —Suber v. Allen, 13 S. C, 317. 

A bill seeking settlement of all matters growing out of an estate is not mul- 
tifarious. — Tucker v. Tucker, 18 S. C, 318. There is no misjoinder where, 
under a bill to marshal assets, two of the defendants claim different tracts of 
land.— Barret v. Tr«//.s-, 13 S. C, 441. Nor where a single action is brought 
upon a note and account against a corjioration and its directors, who are 
jointly and severally liable therefor. — Sxtlliran v. Sullivan, 14 S. C, 4!*4. 

Survivor and representative of surviving i»artner can l>e joined as defend- 
ants.— TFiVscn^fW V. Byrd, 17 S. C, 10(5. Causes of action on single bill, promis- 



OF SOUTH CAROLINA. 85 

A. D. IKOl, 
sory noto and money nccount may be joined.— Cm iv^ni v. Stokes, 20 8. C, 582. ""— — v-""^ 

Two or more demands for relief ia not a misjoinder.— /iJH or j/ v. Ilnzanl Co., 
22 S. C, 47r,. 

Action ft)r partition nmonp romaindermen and for account of t-Ktiite of life 
tenant is a niisjoindor.— .S7i»)i/i-.s v. Mills, 2.') H. C, .'(."iH. 

A joint tri>si)u.s.s by two and continued by one cannot l)o sued t<JKether. — 
nines V. ./arn'tt, 2<i S. C, 4S0. 

Joint action by four wards against their j^ardian is not multifarious.— 5<pi- 
lini/s V. liurrcll, 2() S. C, 474. 

Claim of heirs to laud descended, and as distrilTutee.s, to an accountinp, can- 
not be joined.- /i'i/.s7i v. Warren, 20 S. C, 72. But complaint being dismis.st-d 
as to land, it was i)roperly retained as to accounting. — lb. 

DemuiTor for misjoinder is bad if one cause is imperfectly pleaded. — Ma- 
chine Co. V. Wrny, 28 S. C, 80. 

Plaintiff may join suit on note, with claim to set aside fraudulent transac- 
tions of his debtor, and failing in last may have judgment for his debt. — Mc- 
Ourder v. Clayton, 2!t S. C, 407. 

As to judgment for balance due after sale of mortgaged premises. — Wage- 
ner v. Swi/ijert, 30 S. C, 20(5. 

Doubted whether two causes of action, one for partition and the other for 
recovei-y of real estate, can be joined. — Wcstlakc v. Farroiv,ii4 S. C, 270. 

Action for specific performance of contract to devise or for value of services 
rendered under such contract is not an improper joinder of actions. — Scog- 
gins V. Smith, 31 S. C, (iO.5. 

Action of partner against devisee of copartner in possession of the land 
alleging that it was partnership property and demanding reconveyance or 
sale and division of proceeds did not improperly join several causes of action. 
— Jones v. Smith, ol S. C, 527. 

Sec. 189. Every material allegation of the complaint, not Aiiejmtion not 

, 1 1 ,1 ■^ T ■ C-, ,■ -.^r, , (U'Dled, whi'ii to 

controverted by the answer, as prescribed m bection 170, and be deenHii tme. 
every material allegation of new matter in the answer constitut- ^^'*^''^'^ "*''"' 
ing a counter-claim, not controverted by the reply, as prescribed 
in Section 174, shall, for the purposes of the action, be taken as 
true. But the allegation of new matter in the ansAver, not relat- 
ing to a counter-claim, or of new matter in a reply, is to be 
deemed controverted Ijy tlie adverse jiarty as upon a direct denial 
or avoidance, as the case may require. 

Material allegations in a special proceeding not controverted by answer are 
taken to be true. — Columbia Co. v. Columbia, 4 S. C, 388. 

Allegations of complaint not controverted are to be taken as true.— Lt<po v. 
True, 1(» S. C, 570. The only effect of an answer that is not resiwnsive to the 
corai)laint is that the complaint so far stands admitted. — Zimmerman v. 
Amaker, 10 S. C, 08. 

New matters stated in rei)ly are deemed to be controverted.— Gro re/;/ v. 
Oravely, 20 S. C, 93. So are new matters stated in answer.— i/u^/W/ v. 
Courtney, 5 S. C, 85 ; Gciger v. Kaigler, 15 S. C, 2()2. But that of counter- 
claim is not deemed controverted without reply.— //i(^/»(7/ v. Courtney, 'tS. 
C, 87. 

An answer setting up defenses, other than coimter-claim, not set aside on 
dennim>r is left still as controverting the complaint by din-ct denial or avoid- 
ance —.lf()/)/<;/ v. ri(/v7(i>i, (i S. C, 40. Answer admitting complaint but stat- 
ing sufficient new matter in avoidance is deemed to be controverted, and is 
good.— //i/y/iti/ v. Kellar, 34 S. C, 208. 



8G CODE OF CIVIL PROCEDURE 

A. D. IKW. 



All iilh'K»ition of bis corix>rate existence is no part of plaintiCTs cause of 
action, and is not put in issue by general deniai.— Insurance Co. v. Turner, 8 
S. C, HI ; Stecnnship Co. v. Jiodgers, 21 S. C, :« ; Palmrtlo Co. v. Jlisley,'i!i 
S. C, liOit ; American Co. v. Hill, 27 S. C, 164 ; liemlert v. li. li., 31 S. C, 300 ; 
Lund Co. V. ir»7/i(i»is, IIO S. C, :«57. 

Failure to deny is sucb admission of plaintiflfs case as to allow defendant to 
open and reply.— Arft/isoji v. Duncan, 35 S. C, 105. 



CHAPTER VI. 
Mistakes in Pleadings and Amendments. 

Sec. 8kc. 

UK). Material variances, how provided for. 195. Court may give relief In case of mls- 

191. Immaterial variances, how provided j take. 

100. Suing a party by a Qctltlous name. 

197. No error or defect to be regarded un- 
less It affect substantial rights. 

198. Supplemental complaint, answer and 
reply. 



for. 

190. What not to be deemed a variance. 
193. Amendments of course, and after de- 
murrer. 

191. Amendments by the Court. 



The provisions of this Chapter do not seem to give a Circnit Judge greater 
power than that which was formerly exercised by the Chancellors in this 
State.— (7o?e»na>i v. Heller, 13 S. C, 491. 

Material vari- Scctioil 190. ^o variance between the allegation in a plead- 
vid'ed'for!^ ^^^' ing and the proof shall be deemed material unless it have actually 

ih.,%vji. misled the adverse party, to his prejudice, in maintaining his 

action or defense, upon the merits. Whenever it shall be 

alleged that a party has been so misled, that fact shall be proved 

to the satisfaction of the Court, and in what respect he has been 

misled ; and thereupon the Court may order the pleading to be 

amended, upon such terms as shall be just. 

This Section appbes to trials in actions pending when the Code was adopted. 
— Ahrensy.Bank,'i?>. C.,401. Nonsuit cannot be granted for variance between 
the allegations and the proof ; the only remedy is by amendment upon such 
terms as shall be just, and for this the party must satisfy the Court, by affi- 
davit, that he has been misled, and in what respect.— /<».; iState v. Schcper, .'U 
S. C, 5{i2. Unless the party prejudiced has actually been misled, he bas no 
rights under thLs Section. — Hammond v. R. li. Co., 6 S. C, 130. Judgment 
may be rendered on account stated, although no allegation of account stated 
was made.— .SVoan v. Weslfield, 17 S. C, 589. 

Immaterial Sgc. 191. Where the variance is not material, as provided iu 
prolided^r*!"^^ the last Section, the Court may direct the fact to be found 
1870, XIV., 8193. according to the evidence, or may order an immediate amend- 
ment without costs. 
In all immaterial variances the Cotirt may disregard them and direct a ver- 



lurrer. 



OF SOUTH CAROLINA. 87 

A. I). WM. 

diet according to the ovidonce or order immediate amendment.— yl/»rpn« v. *• — ' ,^-— ^ 
Bank, 8 y. C, 401. 

Sucli uiuendinent is to conform the pleadings to the facts proven, and moy 
be mado infonnally, aonietiiues orally, or by tlio Court of itH own motion. - 
Cliirh.'strr v. Ila.stic, S) S. C, .'ttO. 

Sec. 192. Where, however, the allegiitiou of the causes of whai not to 
ac'titiii or defense to wliich the proof is directerl is not proved, variom*-. 
not iu some particular or jjarticiilars only, but in its entire scope ■"'••*'"^- 
and meaning, it shall not be deemed a case of variance within 
the last two Sections, but a failure of proof. 

This failure of proof warrants a nonsuit. — Ahrens v. Bunk\ '.i S. C, 401. 

Sec. 193. Any pleading may be once amended by the party, Amondmentu 
of course, Avithout costs, and without prejudice to the proceed- aft,.r""(Mimn°*^ 
ings already had, at any time within twenty days after it is i'^-. 8i'J5. 
served, or at any time before the period for answering it expires ; 
or it can be so amended at any time within twenty days after the 
service of the answer or demurrer to such jjlcading, unless it be 
made to appear to the Court that it was done for the purpose of 
delay, and the plaintiff or defendant will thereby lose the benefit 
of a circuit or term for which the cause is or may be docketed ; 
and if it appear to the Court that such amendment was made for 
such purpose, the same may be stricken out and such terms im- 
posed as to the Court may seem just. In such case a copy of the 
amended j^leading must be served on the adverse party. After 
the decision of a demurrer the Court shall, unless it appear that 
the demurrer was interposed in bad faith, or for purposes of 
delay, allow the party to plead over upon such terms as may be 
just. If the demurrer be allowed for the cause mentioned iu i 
the fifth subdivision of Section 165, the Court may, in its discre- 
tion, and u])on such terms as may be just, order the action to be 
divided into as many actions as may be necessary to the proper 
determination of the causes of action therein mentioned. 

The allowance of voluntary amendment, it seems, does not allow a wholly 
different cause of action to be substituted in place of original one. —.S'i(//n'f(H 
V. Sullivcni, 24 S. C, 474. 

Facts occurring since commencement of action cannot be alleged as amend- 
ments in the original comjjlaint ; they can only be brought before the Court 
by supplemental complaint.— J/cC'«h7«>i v. Latimer, 17 S. C, 1'J.S. 

Permission to answer over cannt)t be claimed as a right ; it rests in the dis- 
cretion of the Judge, and he may grant such relief ui)ou payment of costs. — 
n. li. Co. V. White, 14 S. C, ."il ; Lowm v. Jackson, 27 S. C, 318. Or without 
pajnnent of costs. — Stallings v. Barrett, 2i\ S. C, 474. 

When Judge i)roperly overnded clonmrrer made for several causes, and re- 
quired defendant to answer over by a given time, he acted within authority 
herein confeiTed. — C'i(re<yn V. .S7o/vt's, ~0 S. C, .jS'J. When demurrer is taken 



88 CODE OF CIVIL PROCEDURE 

A. D. 1M)4. ~~~~' ~~ " 

^— v,^— -■ in good faith, the Court in overruling it should allow defendant to answer.— 
Thr Xric Co. v. Wray, 28 S. C, 80. 

Aniominionta Sec. 194. 'I'hc Court may, beforo or after judgment, in 
by iije Court, furtherance of justice, and on such terms as may be proper, 
amend any pleading, process, or proceeding, by adding or strik- 
ing out tiie name of any party ; or by correcting a mistake in 
the name of a party, or a mistake in any other respect ; or by 
inserting other allegations material to the case ; or, when the 
amendment doe.s not change substantially the claim or defense, 
by conforming the pleading or proceeding to the facta proved. 

The power of amendment herein is limited to the amendments of the char- 
acter sijecified ; it is intended only to i)erfect a proceeding in which the party 
has been successful, and not when he has lost his cause ; and not to be used as 
a means to obtain a new trial on a new cause after the ca.se has been lost on 
the original cause of action.— /JTenncrtj/ v. Etiivan Co., 21 S. C, 22(5 ; Whaley 
V. Stevens, 21 S. C, 221 ; Hall v. Woodward, liO S. C, .VH ; Clayton v. 
Mitchell, 31 S. C, 199. This limitation, however, applies only during or after 
trial —J/ason v. Johnson, 1.3 S. C, 21 ; Cleveland v. Cohrs, V.i S. C, :W7 ; 
Trumbo v. Finley, 18 S. C, 316 ; Dunsford v. Brown, 19 S. C, mi ; Ne^ett v. 
Cavender, 27 S. C, 1 ; Hall v. IVoodrvai-d, 30 S. C, oW ; Edwards v. R. R. Co., 
32 S. C, 117 ; Lilly v. R. R. Co., 32 S. C, 142. 

But judgment will not be arrested because of defects in complaint which 
might have been cured by amendments before or after judgment. — Brickman 
V. R.R. Co., 8S. C, 173. 

A petition to enforce mechanic's lien is subject to the liberal rules of amend- 
ment under the Code.— J/cG'^e v. Piedmont Co., 7 S. C, 20;^.— A proceeding in 
mandamus in name of party, to which no objection is made, may be amended 
by substituting name of State.— /I'lnuon v. Latimer, S. C. 12«>. 

Such a motion to amend is within the discretion of the Court. — Chichester 
V. Ha.Htie. 9 S. C, ;i34. And such discretion is not to be disturbed unless it 
deprives a party of substantial right. — Trumbo v. Fiiiley, 18 S. C, 30.5 ; Stal- 
linfj.iv. Barrett, 2(i S. C, 474 ; Green v. Iredell, 31 S. C, 588; Garlington v. 
Copeland, 32 S. C, .57. And Circuit Judge has power at chambers to grant an 
order permitting an amendment of the complaint. — Ellen v. Ellen. 2<) S. C, 99. 

In actions against two, as copartners, the proof showing neither copartner- 
ship nor joint liability, and motion for nonsuit being made, the plaintiflf was 
properly allowed to amend, striking out name of one defendant and proceed- 
ing again.it the other.— /ii<// v. Lambaon, .5 S. C, 288. 

Application to amend before trial, made in good faith, should be allowed, 
where the amendment is such as the Code permits. — Zimmennaii v. Amaker, 
IOS.C.,98. 

It is proper, upon the admitted fact of the lunacy of the defendant, to allow 
amendment making guardian ad litem party. — Boyce v. Lake, 17 S. C, 4Hl. 

It is error, at the trial, to permit the name of sole plaintiff to be stricken 
out and another substituted without gi^^ng defendant time to answer.— 
Cleveland v. Cohr.t, 13 S. C, 397 ; Coleman v. Heller, 13 S. C, 491. But if 
time to answer is not asked, the Court may, in its discretion, proceed to trial 
uiHtn the amended complaint. — Tarrajxt v. Gittclson, Ki S. C, '~i\. 

Rt'fusal to allow substitution of a new party, for a plaintiff, who shows no 
cau.se of action, is nrtt f^rror.— Strickland v. liridyrs, 21 S. C, 21. 

The Court may correct by amendment Jhanifest errors and mere clerical 
mistakes.— Carro/; v. Tompkins, 14 S. C, 223. 



OF SOUTH CAROLINA. 89 

- -— ^ p j^^ 

^Vhe^e complaint alleged quantum meruit for work done, it was permisHibli! '*"~>^~~-^ 
to allow amendment, Khowing special contract, in order to allow pnxjf of it.— 
Tarrant v. aUtrlson, KS S. {'., SM. 

Or where the complaint in for assault, it may be amended s<»a4 to Ix^ for 
assault and battery.— .S^i/Z/n/n v. Siillirrtn, '24 H. C, 474. 

PlnintifT may be jxTmitted to amend the romphiint so as to conform it to 
the facts proved.— /i*. A'. Co. v. Jinrrett, 12 S. C, 17:!. 

But he cannot be permitted to amend by stating a wht)lly dififerent and new 
cause of action, when his comi)laint is held to state no cause of action.— 
Trvmbo v. Finlnj, is S. C, :m") ; Sullinin v. Sullirnn, 24 S. C, 474. 

Nor to chnnpe substantially the claim.— ir/in/rj/ v. Sterpiis, 21 S. C. , 221 . As, 
to substitiite a claim of rifjlit of way ajjpurtennnt for a ripht of way in (.^oss. — 
lb. Or a claim of cancellation of an iutstruraent instead of reformation 
thereof.— A'«)incr^i/ V. Etiuan Co., 21 S. €.,220. Or to change an action for 
accounting into a direct attack upon the settlement and receipt, .set up in 
defen.se thereto. — Dvnsford v. Broun, 11) S. C, of;0. Or to make a ca.se at law 
to recover mortgaged land a case in ecjuity to redeem it. — Skinner v. Jlmlgr, 
34 S. C, l(i5. Or to change action to enjoin judgment as paid into one for 
specific performance of contract. — Millir v. KhKjh, 2!) S. C, 124. But in action 
on sealed notes against a firm, calling them promissory notes, an amendment 
alleging indebtedness on the account for which the notes were given does not 
substantially change the claim and should be allowed. — Sitiley v. Young, 2ti 
S. C, 41.^. 

So amendment is allowed to allege sealed note instead of promissory note. — 
Moore v. Christian, ol S. C, 388. 

"Wide as is the latitude allowed by this Section, an order to amend cannot 
be granted where its efifect would be to incorporate into one action two dis- 
tinct actions against different parties — Howard v. \yofforil, 10 S. C, 148. 

Sec. 195. The Court may likewise, iu its discretion and upon court may give 

rpllcf in cflsc of 

such terms as may be just, allow an ansAver or reply to be made, niistake. _ 
or otlier act to be done, after the time limited by this Code of ^''•. *i""- 
Procedure, or, by an order, enlarge such time ; and may also, in 
its discretion, and upon such terms as may be just, at any time 
within one year after notice thereof, relieve a party from a judg- 
ment, order or other proceeding taken against him through hi.s 
mistake, inadvertence, surprise or excusable neglect, and may 
supply an omission in any proceeding ; and whenever any pro- 
ceeding taken by a party fails to conform in any rci^pcct to the 
jirovisions of this Code of Procedure, the Court may, in like 
nuiuner, and upon like terms, jiermit an amendment of .^uch 
proceeding, so as to make it confornnihle thereto. 

After time to answer has expired, the Judge may impose as a condition of 
leave to answer the payment of all costs accrued.— //<<7i^ v. Frieslclwn. 2^ .s. 
C, 181. 

A decree will not be reversed for defects purely technical, which might have, 
upon objection, been cui-ed by amendment.— L(/>iici' v. Griffin, 11 S. C. -Mfci. 

Such relief is only to be given in castas where the judgment has been taken - 
through party's own mistake", inadvertence, surpri.se or excusable neglei't, and 
does not apply to cases where relief may be had upon application to .same tri- 
bunal which rendered judgment under General Statutes.— Go rvin v. Garvin 
13 S. C, 100. 



90 CODE OF CIVIL PROCEDURE 

A. D. 180J. 

'^- — >^— ^ It is intoiKU'd for jMirties who niny. through Buch cmiKc, have lost thi- oppor- 
tunity to be present at the trial or to Ix' rcitresenttd there ; iuid not for parties 
\vlio, ropreseutitl at the trial, are only entitled to relief l)y appliwition for new 
trial under the provisions of the law therefor.— iri//i<i(/i« v. Clturlrntan, 7 S. 
C, 71 ; Gibbes v. KUiutt, H S. C, fiO ; Stt-ele v. R. li., 14 S. C, .-$24 ; Hand v. R. 
R. Co., 17 S. C, 211t ; Clark v. Wimhcrty, 24 S. C, i:J8 ; Kumint.Hky v. R. R. 
Co., 2o S. C, 53 ; Hubbard v. Camperduivn AJilLs, 20 S. C, 5S1 ; Woodward v. 
Elliott, 27 S. C, 308. 

And extends to cftses of such mistake or excusable neglect on the part of the 
party's attorney. — Vaughn v. Heivitt, 17 S. C, 442. 

One Circuit Judge may allow absent pjirty to tile security for costs after the 
time to do so, fixed by another, has expired.— .<V/c.l/i7 /a h v. McCall, 2 S. C, '3'M ; 
Williams v. Connor, 14 S. C, 021. 

Upon application for such relief by defendant, upon grounds of failure to 
answer because of illness, refused by the Judge, it must be assumed that the 
Judge's order was the result of his conclusion as to the weight of evidence and 
not to be disturbed by the Supreme Conrt.—lhtttz v. Campbell, 15 S. C, 014. 

This Section authorizes Judge to vacate judgment by default. — Buttz v. 
Campbell, 15 S. C, 014 ; Truett v. Rains, 17 S. C, 453 ; Leconte v. Iricin, lit S. 
C, 554. 

This limitation of one year is the only limitation in the State to time for 
motion to set aside judgment. — Thew v. Porcelain Co., 5 S. C, 415 ; Ex Parte 
Carroll, 17 S. C, 440. 

Such relief against a judgment must be sought within the one year after 
notice thereof. — Vaughn v. Hewitt, 17 S. C. 442. 

Where plaintifif 's attorney failed to attend the trial because he was detained 
in Court in his own County, and judgment was obtained against him, he was 
not entitled to relief against this judgment under this Section.— C/oKssfJi v. 
Johnson, 82 S. C, 8(). 

Nor can party find such relief from a judgment by default when he en- 
trusted a friend to hand the copy summons to an attorney, with directions to 
plead payment, but the friend failed to do so. — Sullivan v. Shell, 20 S. C, 578. 
The Co\irt can correct any mistake or clerical eiTor in its ovm process to 
make it conform to the record. — Carroll v. Tom2)kins, 14 S. C, 22:1 But it has 
no authority to make suci altei-ation as would contradict the record and 
change the whole scopeof the judgment. — Trimmier v. Thomson, 19 S. C, 247. 
Nor to amend decree rendered in term time after adjournument of Court.— 
Garlington v. Copeland, "<2 S. C, 57. 

This Section does not relate to Courts of Trial Justices. — Doty v. Duiall, 19 
S. C, 143. 
Does it apply to Supreme Court i— Clark v. Wimberly, 24 S. C, 138. 
It does not apply to extension of time for filing security for costs. — liomar 
V. R. R. Co., 30 S. C, 4.50 ; Cummiiigs v. Wingo, 31 S. C, 427. 

Suing a party Sec. 196. When the plaintiff shall be ignorant of the name 

naW oi'itious ^f ^|j^, defendant, such defendant may be designated in any 

1370, xiv^r8S«^ pleading or proceeding by any name; and when his true name 

shall be discovered, the pleading or proceeding may be amended 

accordingly. 

No error or SeC. 197. The Court shall, in every stage of action, disregard 

gar^rod^n^k '"\V error or defect in the pleadings or proceedings which shall 

uai Hghts!*^"' not affect the substantial rights of the adverse party ; and no 

ih., 810'.). judgment shall be reversed or affected by reason of such error or 

defect. 



OF SOTTII CAI^oLINA. 91 

A. I). IHOl, 

If party wishes to take a<lviiutup« of any iiTOK'ularity in the plradinRS he ^— v— — ' 
must move in due time befen) trial for such order ixh ho deserveH.— /i/a/t«'/(/ v. 
Fitisri; II H. C, l:.'2. 

JudKiiifiit may bo rendered on a( count stated, nUhouf,'h m) allegation of ac- 
count stated was made.— .S7(»ni V. Wi'stjii-hf, ITS. C.,5S!(. 

Tills S«>ction precludes tlie allowance of a mmsuit on the ground <.f infor- 
mality alone.— /;f)i<'(/c)i v. W'insinitli. 11 S. C!., 4(Kt. 

A failure of plaintiff to allej,'e his readiness to perform his part of the con- 
tract (lid not affect the substantial rights of the defendant and was i)roperly 
disn>j,'arde<l by the tMrcuit Jud.t,'e.— 7f. R. Co. v. (•'cirlnnil, 14 H. C, Vii. 

Failure to insert in endorsement on complaint for jud(,Tnent the words 
"have .iud),'ment" was mere clerical en-or not affectiuK the substance, and 
should be (lisrej,'arded in the supplementary proceedings thereon, which is but 
a stage of the original action.— //f^n/fjx v. Graham, M'i S. C, :iO;i 

A party caimot under this Section be relieved of consequences of failure to 
comply with order for security for co.sts within the timQ.—Bomar v. R. R. Co., 
30 S. C, 4.")0 : C>iin»ii)i(js v. WitKjo, :51 S. C'., 4".i7. 

Sec. 198. 'I'lii-' i»laiiitilT uiid (Icfendunt, respectively, may he .suppii-nicntai 
ailowed. on iiiotioii . to make a su[)|)Ienieutal complaint, answer .swur umi n-piy. 
or reply, alleging facts material to the case occurring after the "'•'*"-^'"- 
former com})laint, answer or reply, or of which the party was 
ignorant when his former ])leading was made ; and either party 
may, by leave of the Court, in any pending or future action, set 
up by a supplemental pleading the judgment or decree of any 
Court of competent jurisdiction rendered since the commence- 
ment of such action, determining the matters in controversy in 
said action, or any part thereof ; and if said judgment be set up 
by the plaintiff, the same shall be without j)rejudice to any pro- 
visional remedy theretofore issued, or other proceedings had in 
said ai'tioii on lii.s behalf. 

Fat-ts occun-ing after commencement of action can only be brought before 
the Court by supph>mental ])leadingsan(l not by amendment of original plead- 
ings. -McCaslan v. Latimer, 17 S. C, V2:i. 

But plaintiff cannot in action to recover real estate set up a legal title ac- 
quired afteraction brought.— ;^/oo>v v. Johnson, 14 S. ('., 4;J4. 

Such motion to make supplemeuttU pleadings may be made at chaml)ers.— 
Edwards v. Edwards, 14 S. C, 11. 

But the opposite party .should have notice of such motion.— //*. ,• ranirll v. 
Miinrr, Ifi S. C, :{4S. 

Where submission was agreed to an<l i)laintiir opposed the awai-d, the de- 
fendant had the right to plead it by supplementid answer. -.l/ctV«/(/v v. ./nn,s. 

.%s.c:., Kic. 

A bill in e(|uity jjrior to ISTO must be revived and amended by such supple- 
mental complaint and summons.— .IWAio- v. Allrn, 'i*J S. C, 4;J2. 




CODE OF CIVIL PROCEDURE 



TITLE VII. 

OF THE PROVISIONAL REMEDIES L\ ( 1\ IL ACTIONS. 



C H A FT E i{ I . — A rrcsf a n d Ba il. 

Chaitek II. — Claiiii and Ddiccnj of J'crsniKil I'miicrhj. 

Ch A I'TER 1 1 1. — J/iJuNc/ion. 

Chapter IV. — Attachment. 
Chapter V. — Provisional Remedies. 



CHAPTER I 

Arrest and Bail. 



Sec. 

199. No one to he arrested in a civil action, 
except as presorihed. 

200. Arrest in civil actions, in what cases. 

201. Order for arrest, by whom to be made. 

202. Affidavit to obtain order for arrest. 
To what actions this Chapter ap- 
plies. 

203. Security by plaintiff before obtalnlDf; 
order for arrest. 

204. Order for arrest, when it may be 
made, and its form. 

205. Orisrinal affidavit and order to be de- 
livered to Sheriff, and copy to be 
delivered to defendant. 

206. Arrest, how made. 

207. Defendant to be discharged on giving 
bail or making a deposit. 

308. Bail, how given. 

209. Surrender of defendant. 

210. Authority of bail to arrest defendant. 

211. Bail, bow proceeded against. 



31 .J. 



214. 
215. 
210. 
217. 
218. 
219. 
220. 
221. 

222. 
22:^. 

221. 
225. 



220. 



Bail, how (•xonerat«'d. 
Delivery of undertaking of l)ail to 
plaintiff, and its acceptacce or re- 
jection by him. 

Notice of jiistiflcatlon. .New ball. 
Qualification of bail. 
Ju-stiBcatlon of bail. 
Allowance of bail. 
Deposit in lieu of bail. 
Payment of deposit into Court. 
Substituting bail for deposit. 
Deposit, how dispose<l of after judg- 
ment in the action. 
Sheriff, when liable as bail. 
Proceedings on judgment agaJn.si 
Sheriff. 

Bail lial)le to Sheriff. 
Vacating order of arrest or reducing 
bail. 

Affidavits on motion to vacate onUr 
of arrest or reduce bail. 



Section 199. No person shall be arrested in a civil action 



be arreted in a g^^.gj^^ as prescribed by this Code of Procedure: luit the same 



No person to 
le arrested in ; 
civil action, ex- ^ x 

cept as prescrib- ^\^.^\[ i^„j^ apply to proceedings for contempt 

Sec. 200. The defendant may be arrested, as hereinafter pre 



1870, XIV., 6201. 

Arrest in civil scribed, in the following cases : 

'tions in wu&t 

1. In an action for money received, or property embezzled <>r 



actions, 
cases. 

Art."Lfm*'°' fraudulently misapplied, by a public officer, or by an attorney, 
solicitor or counsellor, or by an officer or agent of a corporation 
or banking association, in the coui'se of his emplnymcnt as such, 
or by any factor, agent, broker or other person in a fiduciary 
capacitv. or for any misconduct or neglect in office or in a pro- 
fessional employment, 






OK SOl'I'II CAl.'olJXA. J»3 

A. D. IK»4. 

2. Tn an action to recover the possession of personal property ""■ — ^^^ 
rnmdiilently detained, or where the property, or any part tliereof, 
has hi'uii fraudiih'iitly coMceaU'd, renK)V('d, or di.s|u»sod of so that 
it cannot he foniid oi- taken hy thi' Shcrilf oi- ('on.stal)le, and 
wilh the intent that it shouhl not Itu so found (»r taken, or with 
tlic intent to (h'|irivc the plaintilT of the hcnclit thcnMtf. 

W. When the dcicndant lias hccn ;,niilty of a fraud in contract- 
inir the (h'ht. or iin iirrini,'- the olth'i^ation [uv w lijch the action is 
l)rou<,dit, or in eoneealinjf or disposing of the pi'operty f<»r the 
takiiii;, detention or conversion of wiiich the action is l)ron,i,dit, 
or when the action is hroiiglit to recover daniafjes for fraud or 
deceit. 

4. When the defiMuhmt has renntved or disposed of his prop- 
erty, or is ahont to do so, with intent to defraud his creditors. 

Hut no female shall he arrested in any action. 

.">. Whenever a person domiciled in this State, indebted hy 
Itond, note, or otherwise, is about to remove or al)scond from the 
limits of this .State, and the said debt is not yet due, ])ut payable 
at some future day, it shall and may lie lawful for the obligee, 
payee, or holder of said demand, or his assignee, or endorsee, as 
the case may be, upon swearing that such person is indebted to 
him, and that the demand is just and owing but not yet due, and 
that the debtor is about to al)scond or remove without the limits 
of this State, and that such creditor was not aware that the 
debtor had any intention to remove from the State at the time 
when the original contract was made, or at the time of such 
assignment, or endorsement, as the case may be, to commence an 
, action by issuing a summons and complaint, and shall have power 
to arrest and hold to bail in such numner as is now prescribed in 
this ('iia})ter in cases of debts actually due. 

<;. In an action for the recovery of damages in a cause of action 
not arising out of contract, when the defendant is a non-resident 
of the State or is about to remove therefioni, or when the action 
is for an injury to jierson or character, or for injuring or for 
wrongfully taking, detaining or converting proj)erty. 

AiTt'st l)y I'xcriition uiidfr Koetion .'iOS i.s authoriziHl l)y this Section and 

Section2U-,'.— //m/-.s7, /'IO-/K// <l^ CVa V. iVi//ii«7.-<, .ntS. C, 47(;. ,^ , , 

Onlor for ar- 
ro»t, by wboDi 

Sec. 201. An order for the arrest of the defendant must het«bo made. 
obtained Ironi a .ludge. Trial .Justice, or Clerk of the Court, in ' •'^xn.,303. 

f^ . . Afllil avlt lo 

which or before wliom the action is brought. ..i.iain i.nu-r for 

. umwit ; Ui whai 

Sec 202 'I'he order nniv be nuule where it shall apin'ar to m- 1 1 ons thin 

.,'.»,,■._ ,1 Clinptcr appllnt. 

the proper othcer by tlie anidavit of the plaintilf, or of any other i\, j-joj 



1RS6, XIX.,013. 



04 CODE OF CIVIL PROCEDURE 

A. I). I8!M. ~"~ 

^"^ — ir "^ person, that ii sufticient cause of action exists, and that the case, 
from the facts stated, is one of those mentioned in Section 200. 
stHiirity by Scc. 203. Heforc making the order the J udj^e or other officer 
oiiuiiniiin «>r<i<T shall rt'<|uiic' a written undertaking on the j)art of the plaintiff, 
//".^aoT). ^^'th or without sureties, to the elTect tliat if the defendant 
recover judgment the plaintiff will pay all costs that may be 
awarded to the defendant, and all damages wliich he may sustain 
by reason of tlie arrest, not exceeding the sum specified in the 
undertaking, which shall be at least one iuind red dollars. If the 
undertaking lie executed by the plaintiff, without sureties, he 
shall annex thereto an affidavit that he is a resident and house- 
holder or freeholder within the State, and worth double the sum 
specified in the undertaking, over all his debts and liabilities. 
Order for ar- Ssc. 204. The order may be made to accompany the sum- 
may be made, mons, or ut any time afterwards before judgment. It shall 
"sTo'xrv'^lkjB require the Sheriff or Constable of the County where the defend- 
ant may be found forthwith to arrest him, and hold him to bail 
in a specified sum, and to return the order, at a place and time 
therein mentioned, to the plaintiff or attorney by whom it shall 
be subscribed or endorsed. 

But said order of arrest shall be of no avail, and shall be 

vacated or set aside, on motion, unless the same is served upon 

the defendant, as provided by law, before the docketing of any 

judgment in the action : and the defendant shall have twenty 

days after the service of the order of arrest in which to answer 

the complaint. 

orijrinai affl- SgC. 205. 1'he affidavit and order of arrest shall be deliv- 

to^be^deiivemi ^^^d to the Sheriff or Constable, who upon arresting the defend- 

TOp^to be df- ant shall deliver to him a copy thereof. 

fend^t.^" ^"^ Sec. 206. The Sheriff or Constable shall execute the order 
Il).,fi207. by arresting the defendant and keei)ing him in custody until 
made*^ ^°^ discharged by law, and may call the power of the County to his 
7b., 8208. aid in the execution of the arrest, as in case of process. 
Defendant ui Sbc. 207. The defendant, at anytime before execution, shall 
on 'givinV'baii ^^c discharged from the arrest, either upon giving bail or upon 
posit*''*"^ * ^'^ depositing the amount mentioned in the order of arrest, as pro- 
lb., saoo. vided in this Chapter, or he may be discharged under the jirovi- 
sions of Sections 2524 to 2r)4'2. inclusive, of l';irt HI. of tlic 
Revised Statutes. 

This Section df)es not affect Chuiiter ('. of the <^Toneral Suitutv.^. and under 
that Chapter the defendant niaj' Iw di.scharged under final procestj.— //urs/, 
Pumrll (t Co. V. Srinnirls, 21t S. C 47(i. 



I 



OK SOC'I'll (\i:(»LI.\,\. !,5 

A. I). IHOI. 

Sec. 208. 'I'Ih' (Icf.iKliiiil tnay ^nvc Nail hy oansinp n written ' ^^^-^ 

iiii(li>r(akin<r to l.(. (.xcciilcd My two or niorc siinicicnt. hail, statin;,' """/, "» -nf ''*" 
(heir places of msjdciici' anil occupations, to the cITcct thai the 
ilclViulant shall at ail tinu-s render hiniseli" ainenahle fo the 
processor the Couit iliiriiiir the pendency of tlie action, ami to 
sMch as may he issued to enforce the jiidijinent therein; or if he 
he arnisted for the canse Jiienlioned in the second suhdivision of 
Section 'Zoo, hy an underlakinn- (,, the sanu- effect as that ])ro- 
vided l)y Section 2'.]2. 

Sec. 209. At any time l)efore a failure to comply with the .sum-n.i.-r of 
underlakin,-;-. the hail may snrrender t he defendant in their exon- '''''"'"'"",' • 
(•ration, or he may snrrender liimself to the SherilTof the County 
where he was arrested, in the following nnmner : 

1. A certilied copy of the undertaking of the hail shall he 
delivered to the Sheriff or Constahle, who shall detain the de- 
fendant in liis custody thereon, as upon an order of arrest, ami 
shall, l)y a eertitieate in writing, acknowledge the surrender. 

2. L^pon the production of a copy of the undertaking and 
Sheriff's or Constable's certificate, a Judge or Clerk of the Court 
may. upon a notice to tlie plaintiff of eight days, with a copy of 
the certificate, order that the bail be exonerated ; and on tiling 
the order and the papers used on said application, they shall he 
exonerated accordingly. But this Section shall not api)ly to an 
arrest for cause mentioned in subdivision two of Section :20(), so 
as to discharge the bail from an undertaking given to the eifect 
|»rovided liy Section 2.')2. 

Sec. 210. J^'oi" the purjjose of surrendering the defendant, the AuUu.rfty of 
hail, at any time or place, ])efore they are finally charged, nuiy 1^.1 lam "'''''''" 
themselves arrest him, or. by a written authority, endorsed on a i«'". xiv., «-,'i-.'. 
certified copy of the undertaking, may empower any person of 
suitable age and discretion to do so. 

Sec. 211. In case of failure to comi)Iy with the undertakijiir. niiii. lu.w pro- 
tlie hail may he proceeded aganist hy actu)n only. /,, j^is 

Sec. 212. 'rill' h;iil may be exonerated, either hy the death naii. how ex- 
(»f the defendant, or his imjn-isomnent in a State prison, or liv "'7/,""8en 
his legal discharge from the ohiigafion to render himself amena- 
ble to the process, or by his surremler to the Slu'ritf or Constahle 
of the County where he was arrested, in execution thereof, within 
twenty days after the commencement of the action against the 
hail, or within such further time as may bo granted by the Court. DoHvcp- of un- 

Sec. 213. Within the time limited for that purjxise. the him t" pinlntilr. 

cl • n- /I 111 1 11 1 1- ,1 1 .. . . . ""rt "•'< iKVciit- 

Mientl or ( onstal)le shall deliver the order of arrest to the plain- amv or rej.-*-- 
titf. or attorney hy whom it is subscribed, with his return en- ""/..?«Vi"! 



9G CODfi OF CIVIL PROCEDURE 

A. D. IWM. " 

" y dorsi'il, ami a t'crtified cojiy of the undertaking of the l»ail. Tlu' 

plaintitr, within ten days thereafter, may serve upon the Sheriff 
or Constable a notice that he does not accept tlie l)ail. or he shall 
be deemed to have accejjted it, and the Shc'riir(»r Constable shall 
be exonerated from liability. 

Notiieof Just- Sec. 214. <>n the receipt of such notice, the Sheritf or Con- 
ban. " ' "^ ^ stable, or defeiulant, may, within ten -days thereafter, give to the 

//»., s-.'Ki. plaintiff or attorney by whom the order of arrest is subscribed 
notice of the justilication of the same or other bail (specifying 
the places of residence and occupation of the latter) before a 
.Judge or C!lerk of the Court, at a specilied time and place; the 
time to be not less than live nor more than ten days thereafter. 
In case other bail is given, there shall be a new undertaking, in 
the form prescribed in Section :l()H. 

Quaiiflcation Sec. 215. 'i'he qualilicatioii of bail must be as follows : 

/ft., §217. — 1 • Each of them must be a resident and householder, or free- 
holder, within the State. 

2. f'hey must each be worth thenniount specified in the order 
of arrest, exclusive of property exempt from execution : but the 
.Judge or Clerk of the Court, on justification, may allow more 
than two bail to justify severally in amounts less than that ex- 
pressed in the order, if the whole justification be equivalent to 
that of two sufficient bail. 

Jusuflcation Sgc. 216. I'or the purpose of justification, each of the bail 
1870, xTv., §218. shall attend before the Judge or Clerk of the Court at the time 
and place mentioned in the notice, and may be examined, on 
oath, on the part of the iilaintitl', touching his sufficiency, in 
such manner as the Judge, or Clerk of the Court, in his discre- 
tion, may think projjcr. The examination shall l)e reduced to 
writing, and subscribed by the bail, if required by the plaitititf. 

Allowance of Sec. 217. If the Judge or Clerk of the Court find the bail 

i'h.,§,-2i'x — sufficient, he shall annex the examination to the undertaking, 
endorse his allowance thereon, and cause them to be filed in the 
office of the Clerk ; and the SherilT shall thereupon be exon- 
erated from liability. 

Deposit In lieu Sec. 218. The defendant may, at the time of his arrest. 

■ ity,^iisio^ — instead of giving l)ail, dejiosit with the Sherifl' or Constable the 

amount mentioned in the order. The Sherifl' shall thereupon 

give the defendant a certificate of the deposit, and the defendant 

shall be discharged out of custody. 

Payment of Sgc. 219. 'he Sheriff or Constable shall, within four davs 

deposit Into . , * . , • /-, , , ,, , ^ " 

("urt. after the deposit, i)ay the same into Court, and shall take from 

ih.,i£ii. the officer receiving the same two certificates of such payment, 



OF SOUTH CAllOLINA. OH 

A.D. 18M. 

the one (if wliicli lie >li;i!l (lcli\fi- tn lilt- |)l;iilit ill'. :ili(l tlic olIicT "^-^^v^"^ 
tollic (IcfriKLint . I'm- ;iiiy <lcl';iiill in iiiiik in;,' siidi |iavini'nt, 
till' s;inir proci'cdiii^^'s niay l)C' iiad on tlu- oHiciiil liond of the 
SliciilT or ("onstal)le, to collect tlie .sum {Icjjo.sitcd, ii.s in other 
cases of delinfjuency. 

Sec. 220. If money be deposited, as provided in (he la.nt two HuJwtttu 1 1 n i? 
Sections, l)ail may 1)C given and justilied u|)on notice, a.s pre- ''°|',''",'.lT"'^' 
scribed in Section ^14, any time before judgment; and there- 
upon the Judge before wliom the justification is had shall direct. 
in the order of allowance, that the money deposited l)e refunded 
l)y the Sheriff or Coiislablc to the dcfcndanl. and it sliall be 
refunded accordingly. 

Sec. 221. Where nujney siiall have been so deposited, if it Deposit, how- 
remain on deposit at the time of an order or judgment for the jll^i'^tiwiun't'he 
]iayment of money to the plaintiff, the Clerk shall, under the '"'""°- 
direction of the Court, apply the same to the satisfaction thereof, 
and. after satisfying the judgment, shall refund the surplus, if 
anv. to the defendant. If the judgjuent be in favor of tlu' defcnd.- 
aiit. the Clerk slndl rcfmid to him the w]u)]e sum deposited and 
remaining una])plie(l. 

Sec. 222. I f. after being ai-rested, the defendant escape or be sherirr, when 
rescued, or i)ail bi' not given or justified, or a deposit be not ni, 932^. 
made instead thereof, the Sheriff or Constable shall himself l)e 
liable as Ijaii. lint he may discharge himself from such liability 
by the giving and justification of bail, as provided in Sections 214, 
••21."), 21C> and '^17, at any time before process against the person 
of the defendant to enforce an order or judgment in the action. 

Sec. 223. If a judgment be recovered against the Sheriff or Pnx-i^iinfrs 
Constable, u])on his liability as bail, and an execution thereon be again.si sheritr. 

, 1 X- ,• 1 • r 1 i- 4-1 ]• iKTo. XIV.. e-as. 

returned un.satislied, in whole or in part, the same proceedings 

may l)e had on the official bond of the Sheriff or Constable, to 

collect deficiency, as in other cases of delinquency. 

Sec. 224. I'be bail taken upon tlie arrest shall, unless they naii iiubie to 
justify, or other bail be given or justified, be liable to the Sheriff' ']'^^ '^^^ 
or Constaltle by action for damages which he may sustain by 
reason of such omission. 

Sec. 225. A defendant arrested mav, at anv time before iudir- yncatniK order 
ment. aijplv, on motion, to vacate the order of arrest, or to reduce iiucing bnii. 
the amount ol hail. 

Sec. 226. II 'Ih^ motion be made upon affidavits on (he part Anuiavn."< on 
of the defendant, but not otherwise, the {)laintitT may oppose the "}iior"of'\m'.Vt 
same by affidavits, or other proofs, in addition to those on which -'^/)]'^"j'iw"" 
the order of arrest was made. 




CODE OF Cnil, IM;n(KF)T^nE 



CHAPTER II. 

Claim and Delivery of Personal Property. 

SKC. I 8KC. 

2^. (Mulni and delivery of pereonal prop- | ^t. guullllcuUon nud JUKtlflcatluDuf i 

erty. , tle«. 

22s. Afllflnvit and Its rr'<inlslf<'S. [ '£V>. Pr<tiM>ity, how taken when rtmcealed 
229. Retjiii.sitiini to Slii-rilT In take and In hulhtinir or enrlnsun*. 



deliver the pmiMTty. 

230. Security liy plalntllT. 

231. Exeeptlonti to sureties. 

232. Defendant, when entitled to re 
delivery. 

283. Justiflcutlou of defendant\s snrctles). 



'£Vi. Pro|«-ily, how kept. 
237. riaini of pn)p«'rty hy thlnl i>erson. 
2:iH. Notice and HQldavit, when and where 
to Im' tiled. 



Claim and de- Sectioil 227. I'lie plaiiitiflf, in an action to rccovor the pos- 

8ona[ property !^" sc'ssiou ol" personal 2'ropL'rty, may, at the time of issuing the 

ift., 8229, summons, or at any time before answer, claim the immediate 

delivery of such ])roperty, as provided in this Chai)ter. 

Affidavit and SgC. 228. Where a delivery is claimed, an affidavit must he 
Its requisites. , , , , • • *. • i • i i i, , 

lb., §m made by the plaintm, or by some one m his behalf, showing : . 

1. That the plaintiff is the owner of the property claimed, 
(particularly describing it,) or is lawfully entitled to the posses- 
sion thereof, by virtue of a special property therein, the facts in 
respect to which shall be set forth. 

2. That the 2)roperty is wrongfully detained by the defendant. 

3. The alleged cause of the detention thereof, according to 
his best knowledge, information and belief. 

4. That the same has not been taken for a tax, assessment, or 
fine, pursuant to a statute ; or seized under an execution or 
attachment against the property of the plaintiff; or, if so seized, 
that it is, by statute, exempt from such seizure. And, 

5. The actual value of the i)roperty. 

R^isition to Sec. 229. The plaintiff may, thereupon, by an endorsement. 

and deliver the in writiiiiT. upon the affidavit, require the Sheriff of the C'ountv 

property. ' . 

1870, XIV.,' KsT. where the pro})erty claimed may be to take the sjime from tlu- 

defendant and deliver it to the plaintiff. 

Bfirdin v. Drafts, 10 S. C, 493. 

Security by Sec. 230. Upon the receipt of the affidavit and notice, with 
plaintiff. written undertakino; executed by one or more sufficient sure- 

//>., 9232; 1873, '^ •' 

XV., 498. ties, approved by the Sheriff, to the effect that they are bound 

in double the value of the property, as stated in the affidavit for 
the prosecution of the action, for the return of the property to 
the defendant, if return thereof be adjudged, and for the pay- 
ment to him of such sum as may, for any cause, be recovered 
against the j>laintiff, the Sheriff shall forthwith take the prop- 



I 



OF SOUTH (AIM) LIN A. 




crt y (Icsi-rilx'fl in llic nUidavit. if il he in the pusscssinii dftlic 
(i('t'('ii(l;iiil or his a^ciit. and retain it in liis ciistnd v. Ilcsliall 
also, witliout delay, serve on the defendanl. a (•«»|iy of the alli- 
davil, notice and ^n(lertakin^,^ hy fleliverini,' the same to him 
pi'rsonally, if he can l»c fonnd, or t(» his ai^ent from whose pos- 
session the property is taken ; or, if neither can he found, hy 
leaving; tlieni ut tlie usual place of ahode of either, with some 
person of suitahle age and discretion. In ease the plaintitT does 
not execute the required undertaking, the party liaving pf)sseR- 
sion of tlie property shall retain tlie same until the determimi- 
tion of the suit. 

Sec. 231. 'I'h*^' defendant may, within three days after the ExcepUon to 
service of a copy of the affidavit and midertaking, give notice to isro, xiv-.taw. 
the SherilT that lie excepts to the sufficiency of the sureties. If 
he fail to do so he shall be deemed to have waived all objection to 
tlicin. When the defendant excepts the sureties shall justify, 
on notice, in like manner as upon bail on arrest. And the 
Sheriff shall be responsible for the sufficiency of the sureties 
until the objectiou to them is either waived, as above provided, 
or until they shall justify or new sureties shall he substituted and 
justify. If the defendant except to the sureties he cannot reclaim 
the property, as provided in the next Section. 

Sec 232 At anv time before the delivery of the nroijcrty to Defpmiant, 

- •' 1 wlK^ncntltU'dto 

the plaintilf, the defendant may, if he do not excejjt to the sure- rtHieiivery. 

ties of the plaintiff, require the return thereof, upon giving to 
the Sheriff a written undertaking, executed by two or more suffi- 
cient sureties, to the effect that they are bound in double the 
value of the property, as stated in the affidavit of the plaintiff, 
for the delivery thereof to the plaintilf, if such delivery be 
adjudged, and for the payment to him of such sum as may for 
any cause be recovered against the defendant. If a return of 
tin; property be not so required within three days after the taking 
and service of notice to the defendant, it shall be delivered to 
the {)laintiff, except as provided in Section 237. 

JudRiin'iit having been rendered in the action in favor of phiintiflf for dam- 
ages, and not for delivery of the jiroju-rty, it was sufHeient pr<K)f of breach of 
the lx)nd given by the defendant under this Section in suit thenH)U.— T/ioHiji- 
80n V. Joplin, 12 S. C, r>S(). 

The words '' if such delivery be adjudged " mean adjudged by any ci»u])itint 
iwithnrity.— Elder v. Gn't-n, 'M S. C, IM. 

Sec. 233. The defendant's sureties, upon a notice to the j,^,,,,,,.^,,^^ 
plaintilf of not less than two nor more than six days, shall justifv "' '•/•f«*'i«i«nt's 
before a Judge, Clerk of the Court or Trial Justice, in the same isro, xiv., ftas. 



100 CODE OF CIVIT. PT^rjCEDtlRE 

A. D. IHW. "■ ' ' 

"""■""v ' nuiiiiuT as upon hail on arrest. Uj)on sucli justification tlie 
Slit-rilT sliall (U'liver tlio |)ro]»ertv t(j the defendant. The Sheriff 
shall be responsible for the defendant's sureties until they justify, 
or until justification is completed or expressly waived, and may 
retain the property until that time ; ))iit if they, or others in 
tiieir place, fail to justify at ihe linie and place appointed, he 
shall deliver the property to the plaintiff. 

yiiaiificiition Sec. 234. The qualifications of sureties and their justifica- 
o£suifties. tion sliall he as are prescribed l)y Sections ^lo and :ili» in respect 

J b.. 15236. ^Q j^j^ji ypQjj j^n order of arrest. 

Property, how Sgc. 235. If the property (jr any i)art thereof Ijc concealed in 
concealed in a l)uilcling or enclosure, the Sheriff' slmll ])ublicly demand its 
ckwuref ^"^ ^°" delivery. If it be not delivered, he sITall cause the building or 

//)., 8337. enclosure to be broken open and take the property into his pos- 
session ; and if necessary he may call to his aid the power of his 
County. 

Property, how Scc. 236. When tlie Sheriff shall have taken property, as in 

T/)., 82:i8. this C'ha})ter provided, he shall keep it in a secure place and 
deliver it to the party entitled thereto, upon receiving his lawful 
fees for taking and his necessary expenses for keeping the same. 

ciaimofprop- ScC. 237. If the property taken be claimed by anv other per- 

c r t V b V third a j. •/ % ^ i 

person. son than the defendant or his agent, and such person shall make 

7b., §239. affidavit to his title thereto and right to the possession thereof, 
stating the grounds of such right and title, and serve the same 
upon the Sheriff', the Sheriff' shall not be bound to keep the prop- 
erty or deliver it to the plaintiff', unless the plaintiff', on demand of 
him or his agent, shall indemnify the Sheriff against such claim by 
an undertaking, executed by two sutticient sureties, accompanied 
by their affidavit that they are each worth double the value of 
the property as specified in the affidavit of the plaintiff, and are 
freeholders and householders within this State. And no claim 
to such property by any other person than the defendant or his 
agent shall be valid against the Sheriff unless made as aforesaid : 
and notwithstanding such claim, when so made, he may retain 
the property a reasonable time tt) demand such indemnity. 
Notice and gec. 238. The Sheriff shall file the notice and affidavit, with 

affidavit, when .,1 ,, /-,i 1 * ,1 ,, ^ ■ ,1 

and whereto be his proceedings tJicrcon, With the Clerk of the Court in which 

flled. . 

ib., §240. — the action is pending, within twenty days after taking the i)rop- 



erty mentioned therein. 



I 




OF SOl'TII ( AlJorJNA. 

CHAPTER III. 

Injunction. 

Sko. ! 8kc. 
SHlt. Writ (if Injiiiu-tiuu aboli8he<l, and or- ^4-1. ( )rflt'r U) hIiow omiw> why injunction 

(liT sul)stiliili-(l. Hlimilil not Ih> Kr>inl<Ml. 

21(1. Tcnipipniry iiijiinctliin. In what cases ' -15. Scctirltv upon Injiiiictlun to sii.spnml 

Krimtcil. l)U.>(incs.s of i'<irp<initlciii. 

•J41. At what linn- It may In- f^rnnted. •■Mti. M(jtlou to vucutc or iiiodify Injuno 

Copy allldavlt to lie si'|-vp(l. I tlon. 

342. Injunction aft<T un.swcr. 247. Aindavits on motion. 

24M. Strurlty upon Injunction. Damages; I 

how ascertained. I 

Section 239. An oniev of injtmctioii iiiiiv l)c made liy the writ of injunc- 
( oiiri oi C 1)111111011 rieas in whieli (he action is l>roii<,Mit, or hy a and <.rder sub- 
.Iii(lii:e tlieieof ; and in the ahsence f rom the Circuit, orinahihty, "J^^." j^iV 824i. 
I'roiii any cause, of a Judge thereof, by a Judge of any other 
Circuit, or a Justice of tlie Supremo Court. And by Proliate 
.ludgcs in the cases provided in Section 41 of this Code of Pro- 
cedure. 

Sec. 240. •• Wliere it sliall ajipear l)y tlie coin]daint that tlie Temporary m- 
plaiiititf is entitled to tlie relief demanded, and such relief, or what cases 

any part thereof, consists in restraining the commission •"" •'<»ii- ^"/"/ga^a 

tiiiuaiice of some act, the commission or continuance of which, 
(luring the litigation, would produce injury to the plaintilf ; or, 
2. When, during the litigation, it shall appear that the defend- 
ant is doing, or threatens, or is about to do. or procuring or suf- 
fering some act to be done, in violation of the iilaintiif "s riglits 
respecting the subject of the action, and tending to render the 
judgment ineffectual, a temporary injunction may be granted to 
restrain such act. 3. And wliere. during the jiendency of an 
action, it shall appear by affidavit that the defendant threatens 
or is about to remove or dispose of his property, with intent to 
defraud his crcdit(jrs. a temporary injunction may be granted to 
restrain such removal or disposition. 

The sole object of this Section is to i)reserve the subject of controvei-sy in 
the condition in which it is when the order is made until an opportunity is 
aflforded for a full and delil)erate invcstij^ation. It cjuinot l>e used to tiike 
proiwrty out of the possession of one and put it into that of another. — /'c/acr 
V. fhicfhfs, 27 S. C, 40S. Unless the jjarty acquired the jHwsession in breach of 
the order of injunction. — ColiDuhin Wittvr I'oiror Co. v. Ci>li(ttilti(i,-i .S. C'.,;}.^^. 
Order for tenii)orary injunction may \ie Krant«Hl without notice to the defend- 
ant.— U'arsoH V /ifoiA-, ") S. v., loil. And is not void because an undertJikintj 
was not reciuinnl of tlie plaintiff.—/?*. 

Sec 241 The injunction may l)e granted at the time of com- At what ume 

. ' ,'' 1 1 1. • 1 " '""*' *"' jrrant- 

inencing the action, or at any time afterwai'ds. before ludument, "M; copy anida- 

• • • n 1 1 . 1111 vll U) U' S4'n-ed. 

upon its appearing satisfactorily to tlie Court or Judge, Ijy the ii,.,iiM. 



102 CODE OF CIVIL IMfoCEDUKE 

A. D. IKW. 

''"■""V"^ iiltidavit of tlu' |»laiiitilT, or of any otliiT person, tluit suflioient 

i^rounds exist tlu'ref<tr. A eopy of (lie afliihivit must l)e served 

with the injunction. 

UiKin such application for injunction tlie Jud^jc may consider th«' merits of 
the cjise in order to determine whether it should be ffrivnttnl, and his refusal in 
not a decision uiM)n the merits.— .SV-fwc v. Dtilmon, '.'A H. C, 'Mtt. 

injunrtion Sgc. 242. An injunction shall not he allowed after the de- 
af ut answer. I- 1 i 1 II I 1 1 -• 
lb 8244 iendant siiall have answered, uiuess upon notice or upon an 

order to show cause ; but in such case the defendant may be 

restrained until the decision of the Court or .Judge granting or 

refusing tlio injunction. 

Security upon Sgc. 243. W lien no provision is made by statute aa to secu- 

tiaiimges, h*o w* rity uj)on an injunction, the Court or Judge shall require a writ- 

j*), ,245' - ten undertaking on the part of the plaintiff, with or without 

sureties, to the effect that the plaintiff will pay to the party 

enjoined such damages, not exceeding an amount to be specified, 

as he may sustain by reason of the injunction, if the Court shall 

finally decide that the plaintiff was not entitled thereto. The 

damages may be ascertained by a reference or otherwise, as the 

Court shall direct. 

The Judge may, in his discretion, dispense with sureties on the undertaking. 
-Memhord v. Strickland, 21» S. C, 4'.n. 

Such damages may be ascertained by a reference. — Hill v. Thomas, I'.t S. C, 
2:^0. Coun.sel fee for single act of dis.solving injunction is allowable sis pjirt of 
damage.s ; but a fee for general services in defending case is not.— Lirinyston 
V. Exum, lit S. C, 22;^ ; Hill v. Thomas, lit S. C, 2;«l. Not determined whether 
costs are a part of the damages. — Hill v. Thomas, lit S. C, '£M). But credit<ir 
is allowed interest on debt enjoined, a.s part of his damages. — Ih. 

Order to show Sgc. 244. If the Court or Judge deem it proper that the de- 
junction should fendaut, or any of several defendants, should be heard before 

not be granted. ^- i\ • • j.- 1 ^ ^ 

1870. XIV. §240. granting the injunction, an order may be made, requiring cause 

to be shown, at a specified time and place, why the injunction 

should not be granted ; and the defendant may in the meantime 

be restrained. 

Security upon Sec. 245. An injunction to suspend the general and ordinary 

su.spend b u s i- busiucss of a Corporation shall not be granted except by the 

tion. ""^^ Court or a .Judge thereof. Nor shall it be granted without due 

ift., 8247. notice of the application therefor, to the i)roper officers of the 

corporation, except where the State is a party to the proceeding, 

and except in proceedings to enforce the liability of stockholders 

in corporations and associaticms for banking purposes, as such 

proceedings are or shall be provided by law, unless tlie plaintiff 

shall give a written undertaking, executed by two sufficient 

sureties, to be approved by the Court or Judge, to the effect 



I 



OF SOUTH r\\i:()MNA. 



I(i3 



A. U. IWM. 

lliat tlu' iilaiiililT will pay all (laiiia/^'cs, not cxccc'diii^ the sutii to "-"^v'—' 
he iiiciitioned in the uiidertakinj^, whicl) such corporutiou may 
sustain l)y roasoii of tlio iiijuiiction, if tin- ('oiirt shall liiuiliy 
(h'cidc that tlu' ])hiintilT was nut cntitU'd thcri-to. Tlu' (hnna/^es 
Miay 1)0 ascertaiiu'd hy a I'ld'tTcnci! or otherwise, us the Court 
shall (I i reft. 

Sec. 246. Il thi' injunction he <,Manted hy the Court, or a Motion to va- 
•lud^fe thereof, without notice, tlie defendant, at any time hefore injuiKiion 
the trial, may apply, upon notice, to the Court, or a .Judge "'•'*^''*- 
tlu 111 if. ill which the action is l)rought, to vacate or modify tlie 
same. The a})plication nuiy he made upon tlie complaints and 
the athdavits on which the injunction was granted, or upon afll- 
davits on the part of the defendant, witli or without the answer. 

Sec. 247. II the application he made upon affidavits on tiie Anuiuvita on 

part of the defendant, hut not otherwise, tlie i)laintifl:" may jh./i-n'x ' 

oppose the same hy affidavits or other proofs in addition to those 

on which the injunction was granted. 

CMrciiit Judge in open Court can dissolve temporary injunction granted by 
liis predecessor until further order of the Court. — Bovkniyht v. Davis, Xi S. 
<"., 410. 



CHAPTER IV. 

Attachment. 



8KC. 

348. 



251. 
3fl2. 

3f).S. 

265. 



•r,:./,. 



Property of foreign forpomtlon.s, 
and of non-resident, or uKscondlng, 
or concealed defendants may be at- 
tached. 

Attachiiiont, by whom trnmted. 
In what ciLscs iittucliiiifiits may be 
Ksiicd; allklavit.s to be tiled. 
Security on obtaiiihiK tittacliiiiciit. 
Attachiiicnt, to wlmm directed, and 
what to require. 
Property to be attached. 
SlierilT's duties in case of seizure. 
PrcHx-edintrs in cjuse of perishable pro- 
p«'rty or ves-soLs ; Issue as t<i owner- 
ship. 

Claim of third person; pnK-eedlnjrson. 
Attacliriierit when ilelit not due. 
Interest In corporations or a.s.s(H'la- 
tlons liable t<i attachment. 



Sec. 



2.')'.). 
20(1. 



Section 248. I" 'Hiy action arisin 
or for the ri'covery of })ro{)erty. whe 
damages for the wrongful conversion 
property, or an action for the recov 



Attachment, how exi'cuted on propiT- 
ty incapable of nuinual delivery. 
CertlQcate of defendant's Interest to 
be furnished. 
.Iiiiltrment, how satlslliKl. 
When action to recover note.s, Ac, of 
defendant may be prosi«uted by the 
plaintilT in the action in which the at- 
tachment issued. 

Bond to SIktIIT on att4ichment, how 
disposed of on Jud^nuent for defend- 
ant. 

I)i.«*char({e of attachment, and return 
of property nr its pn'ceeds lo clefend- 
ant, on bis appearance in the action. 
I'ndertaking on the p.irt of the ile- 
feiidant. 
When SherilT to return att4u-lmi*-nl. 

with his proceeding's thereon. . Pmperly of 

fon-lKn r»ir|Him- 
tioiis. a n d o r 

11 for the recovery of monev non-n'sidem. or 

• al«<4-ondlnir, o r 

ther real or i)ersonal. and comvuied dc- 

. * fenihintj*, m • y 

and detention of personal •>»' attached. 

,. 1 r • ■ 1«^'. XIV., »2!«l; 

cry oi damages for injury ihtb, xvii.,23. 




CODE OF CIVIL PROCEDURE 



dniic to either person or i)ropcrty, or against a corporation created 
by or under tiie laws of any otlier State, <(overnnK'nt or country, 
or against a defendant who is not a resident of this State, or 
against a defendant wlio has absconded or concealed himself, or 
wlienevei" any person or corporation is about to remove any of 
his or its jjroperty from this State, or has assigned, disposed of, 
or secreted, or is about to a»ssign, (lisp(»se of, or secrete, any of his 
or its })i'operty. with intent to defraud creditors, as liereiiiafter 
mentioned, tlu' plaintitf, at the time of issuing the summons, or 
any time afterwards, may have the property of sucli defendant 
or cor})oration attaclied, in the manner hereinafter j)rescribed, as 
a security for the satisfaction of such judgment as the phiintitf 
may recover ; and, for the purposes of this Section, an action 
shall be deemed commenced when the summons is issued : Pro- 
vided, liowever. That personal service of such summons shall be 
made or publication thereof commenced within thirty days. 

An action by creditors of A against A and B to set aside a fraudulent con- 
veyance from A to B and for tlie payment of the debt, is, as to A, an action 
for the recovery of money. — Hank v. Sti'lliny, 81 S. C, :>«0. 

Where action fails for want of jiirisdiction, attachment therein falls with it, 
being a provisional remedy in aid of an action. — CV-H^yr/ h'. li. Co. v. (ieorijin 
Co., 82 S. C, 81!». 

The attachment is not void because it bears date before the date of the sum- 
mons I the existence of the summons at date of attachment may be shown 
aliunile. — Smith v. W(tll:e)\ (i S. C, Ki'.). Nor void when the summons bears 
same date as attachment but Sheriff's endorsement shows service next day. — 
Cureton v. Darrjan, 12 S. C 122. The summons is considered is.sue<l as stK)n 
as it is made out and an application for attachment founded on it.—/''. 

Attachment, by Sec. 249. A warrant of attachment must be ol)tained from a 
whom|rant^ Judge or Clerk of the Court or Trial Justice in which or before 

iO., §251. ^ 

whom the action is brought, or from a Circuit Judge. 
In what cases Sec. 250. The Warrant may be issued whenever it shall 
maTbe"issued^ ^Pl'csn' by atlidavit that a cause of action exists against such 
flied"^'^^ ^ ^ defendant, specifying the amount of the claim and the grounds 
lb,, 8252. thereof, and that the defendant is either a foreign cor])oration or 
K* not a resident of this State, or has departed therefrom w^ith 
^ intent to defraud his creditors, or to avoid the service of a sum- 
mons, or keeps himself concealed therein with the like intent, or 




y 



^ 



that such corporation or person has removed, or is abf»ut to 
remove, any of his or its property from this State, with intent to 
fcC) defraud his or its creditors, or has assigned, disposed of or 

J secreted, or is about to assign, disjiose of or secrete, any of his or 

its ]iroperty with the like intent, whether such defendant be a 
resident of this State or not. 



I 



OF SOUTH CAROLINA. 105 

A. I). IKlil. 

If. shiill \)v t lie (liit\ of the |)l:iiiitilT |in)ciiriiiL'' siidi wiirraiit, """^y^"^ 
williin ti'ii (|;i\s nftcr tlic issuiii;,' tlicn-dr, to ciiiisc tln' allidjivits 
on which tlu' saiin' was <f ran ted tu he tiled in the oHicc of tlio 
Clerk of the Conrt of Coinnion I'leas or with the Trial .Justice 
ill w liiili or licfoi-e whom the artioii is to he tried. 

Attiicliim-nt of iion-n'sidcnt !ipi''>^t a forcij^ii corporutioii is v«li<l to the ex- 
tent that tlic (viuso of action aros(' in this State. — ('mtriil It. R. Cn. v. (Iriirijid 
To., ;{'J S. C, :51H. But attachment will not lie in action of resident adiuinis- 
tiator againat non-resident ^^uanlian of infants residint; in another State l)e- 
cause such action cannot ho maintained. --.SVnu'u.wH v. I)iinl(i]>, :','.', S. (,'., :j."i(). 

Tho affidavit is sufficient as to cause of lu^tion, if it state a causo of action, 
or if it state facts from which, as a h'sal conclusion, it must he infeiTed that 
it does exist. — .1/<>/(f/fri/ V. KInmrr, '27 H. C, r.iO ; Central II. li. Co. v. (leorf/in 
Co., ii'2 a. C, 810; Roddeij v. Erwin, ;il S. C, 'M ; limik v. Slrllitiij, :il S. ('., 
3(iO; Krfrhen v. Lanclechpr.:^)i S. C, 15.5. 

Where ground of attachment is such non-resideuc(> of the defendant, the 
atlidavit i.s sufficient if it state that fact without other facts and circumstances. 
—Smith V. Wdlh'r, V> S. C, ir.d ; h'lxltln/ v. Knvin, :51 S. C, :5(J. 

But as to all the other {^rounds, the affidavit must positively state the facts; 
and if upon information, it must also state the sources of information and 
circumstances relied on to show them.— .S'»)n7/i V. \V(ilki'r,V> S. C, Kiit ; linnr)! 
V. Morria, 10 S. C, 41)7 ; Clau.-icn v. Fultz, V.i S. C, 4~S ; Hurch v. Brant Iry, '_'() 
S. ('., M\ ; Ivy v. Caston, 21 S. C, .588 ; Myers v. Whitehvart, '.M S. C, I'.H". ; 
Mixnn v. HnUexj, 20 S. C, 2.5C. ; Monday v. Elmore, 37 S. C, 126 ; Wando v. 
/.■o.sr>i/*(>Y/, 81 S. C, 801 ; Roddey v. Erwin, 81 S. C, 8ti ; Shaip v. Palmer, 
;il S. ("., 444. 

Whether coyviV.s- of the affidavits lilcd will suffice. — Watjenrr v. Hooker, -W 
S. C.,8r.5. 

Where the affidavits are not tiled in ten days the attachment will he dis- 
chai'ged on motion. — ATr'^'/toi v. Landecker, 82 S. C, 1.5.5. Service of copies 
on the defendant within that time will not suffice. — lb. 

Sec. 251. Before issuing the warrant, the Judge, Clerk or semrity on 
Trial Justice shall require a written undertaking on the part of taciunent. 
the plaiiitill with sufficient surety, to the effect that if the '^'"- ■'^'^■- ''"''^• 
defendant recover judgment, or the attachment be set aside hv 
order of the Court, the plaintiff will pay all costs that may be 
awarded to the defendant, and all damages which he may sus- 
tain by reason of the attachment, not exceeding the sum specified 
in the undertaking, which shall be at least two hundred and fifty 
dollars, exce])t in case of a warrant issued by a Trial Justici'. 
when it shall be at least twenty-five dollars. 

This written undertaking required must he .signed hy the plaintiff he/ore 
the uunrant is issued, or the attaihment based on it will he set aside.— /V(»(i/,- 
v. Strfliiiii, ■■'] S. ("., :;r,(( ; Wmjener v. Hooker, 81 S. (,"., 87.5. 

Sec 252 'I'l'c warrant shall be directed to any SherilT or .vtt«<-hiiient,io 
Constable i>r any Couutv in which i)ro])erty of such defendant »nii wimt to rv- 
may be, and shall require him to attach and safely keep all the /f,.. jivt. 
jiropertyof such defendant within his County, or so much thereof 



106 CODE OF CIVIL PROCEDURE 

A.D. IKOJ. 

^"■^>''^^ M may he sutlicieiit to satisfy the plaintiflf's demand, together 
witli c-osts and expenses, the amount of whieh must l)e stated in 
conformity with the complaint, together with costs and expenses. 
Several warrants may be issued at the same time to the Sheriffs 
or Constables of different ('ounties. 

Debt due defendant by another is subject of attachments.— 3/'- £7 ivi/ v. .S'. C. 
li. li. Co., tiS. C, 44<i. 

The interest of a non-resident partner in partnership projK'rty cannot be 
attached for partnership debt where one of the partners resides here and is 
duly served.— U7nY/if/</ v. Huvcy, :10 S. C, 117. 

Property in hands of receiver cannot be attached.— //e(/tn«^ejn v. PearUtein, 
:J0 S. C, 1 !♦•->. 

Property to be Sgc. 253. The Sheriff or Constable to whom such warrant is 
/b., §255. directed and delivered shall immediately attach all the real estate 
of such debtor, and all his personal estate, including money and 
bank notes, except such real and personal estate as is exempt 
from attachment, levy or sale by the Constitution, and shall 
take into his custody all books of account, vouchers and papers 
relating to the property, debts, credits and effects of such debtor, 
together with all evidences of his title to real estate, which he 
shall safely keep, to be disposed of as hereinafter directed. 

When real estate is attached, a true and attested copy of such 
attachment, together with a description of the real estate attached, 
shall be, by the officer serving the same, delivered to the party 
whose real estate is attaclied, or left at his last and usual place of 
abode ; and the officer making such service shall also leave a true 
and attested copy of such attachment, together with a descrip- 
tion of the real estate so attached, in the office where, by law, a 
deed of such estate is required to be recorded : and if the party 
whose estate is attached does not reside in this State, then such 
copy shall be delivered to his tenant, agent or attorney, if any be 
known ; and if no such agent, tenant or attorney be known, then 
a copy of such warrant of attachment, with the officer's return 
thereon, lodged in the office where by law a deed of such real 
estate ought to be recorded, shall be deemed sufficient service. 
It shall be the duty of the Clerk or Register of the office wherein 
said warrant of attachment is re(|uired to be lodged to receive 
the same, and enter in a book kept for that jiurpose the names of 
the parties, the date of the warrant of attachment, the sum de- 
manded, and the officer's return thereon. Said attachment shall 
be a lien, subject to all prior liens, and bind the real ostiite 
attached from the date of lodgment : Provided, That all at ii li- 
ments lodged upon the same day shall take rank together. 



I 



OF SOUTH CAROLINA. 107 

Two uttachnicnts lcvi«<l ujion personal property of the debtor at different ^— ' v~~^ 
hours of the aamo day, tiny niiik top'tlicr lus lU'im.— St rffens v. ^^'anh(lckl■r, 
17 S. (".,475. 

Sec. 254. Ifi' sli;i!I, iiiiiiiediately on iiiakin;; siicli seizure, ' shprirr'n dutirs 

. . , , , ■ . I. i 1 • • i III- 111 1 . , In cajM-jt of selz- 

witli (he a.ssi.-^tiiiict' ol two (lisiiucrestiMi frceholdt'is, iiiaki- ii jii.st un*. 
and true iuventory oi" uU the property so seized, and of the Ijook.s, i'^^". xiv., ta«. 
vou('l}ers and papers taken into custody, stating therein the 
estimated value of the several articles of ])ersona] projjertv. and 
enumerating such of them as are ])erishal)le, wliicli invcntcjry, 
after being signed by the Sheriff and appraisers, shall, within 
ten days after such seizure, l)e returned to the officer who issued 
the warrant ; and the Sheriff or Constable shall, under the direc- 
tion of such officer, collect, receive, and take into his possession, 
all debts, credits and effects of such debtor, and commence such 
suits, and take such legal proceedings, either in his own name or 
in the name of such debtor, as may be necessary for that pur- 
pose, prosecute and discontinue the same, at such times, and on 
such terms, as the Court may direct. Tlie property so seized, or 
the proceeds of such as shall have been sold, and debts collected, 
shall be kept to answer any judgment which may be obtained in 
such action. 

Sec. 255. If iniy of the property so seized be perishal^le, the proceetiings in 
Sheriff" shall sell the same at public auction, under order of the abu> proixTty^or 
Court or of a Judge thereof, and shall retain in his hands the^^'tv,;. ,j^ 
proceeds of such sale, after deducting his expenses, to be allowed xvni.. m. 
by such Court or Judge, Avhich proceeds shall be disposed of in 
the same manner as the property so sold would have been if it 
had remained unsold. 

Sec. 255a. If the person in whose possession such property cinimofthini 
shall be attached shall appear at the return of the writ and file reedinRsun. 
his answer thereto, and deny the possession or control of any ■"^••■-'^•■''"• 
jiroperty Ijclonging to the defendant, or claim the money, laiuls, 
goods and chattels, debts and books of account as creditor in 
possession, or in his own right, or in the right of some third ])er- 
son, or if any part of the said property be claimed by any otiier 
person than such defendant, then, if tiie plaintiff be satisfied 
therewith, the party in possession shall be dismissed and the 
})laintiir pay the cost of his action. But if the i)laintill shall con- 
test the said return or the claim of said third person, an issue 
shall be made up under the direction of the Judge to try the 
question, and the party that shall prevail in said i.<sue shall 
recover the costs of such proceeding (>f the opposite })arty. and 
judgment shall be given accordingly. If the jiarty in pos.sessiou, 
8 



108 CODE OF CIVIL PROCEDURE 

A. D. ISIU. 

V ' or flio []nn\ person claiming the propert}', as the case maybe, 

resides in u cliiTereiit County from tliat in wliich the aeti(jn is 

brought, and an issue be made up between liiin and tlie phiintill, 

the action shall be tried in the County where the party in posses- 

eion resides. In case the ])roperty is claimed by a third })erson, 

the {ilaintilT shall execute to such jjcr.son the same undertaking 

that he is now required to give under Section 251 ; the said 

undertaking to be executed within ten (10) days after notice of 

such claim. 

Under this Section, assignee of defendant's propertj', under deed of assign- 
ment, must establish his right to the property before he can move to discharge 
the attachment under Section 2(')^i. — linjce v. Fuot, 25 S. C, 4()7. 

Attachm e n t Scc. 255b. Whenever a debt is not yet due, and it appears to 
wh^en debt not ^|^^, satisfaction of a Circuit Judge, the Clerk of the Court of 
Tb. Common Pleas, or Trial Justice, by affidavit, that the debtor l>as 
departed from the State with intent to defraud his creditors, or 
to avoid the service of a summons, or keep himself concealed 
therein with a like intent, or that such person has removed or is 
about to remove any of his property from this State with intent 
to defraud his ci*editors, or has assigned, disposed of or secreted, 
or is about to assign, dispose of or secrete, any of his property 
with like intent, it shall be lawful for the plaintiff forthwith to 
institute suit ujion such debt or cause of action, and for said 
Circuit Judge, Clerk or Trial Justice to issue his warrant of 
attachment as if said debt were then due and payable. But no 
judgment shall be had thereon till after the maturity of the debt : 
and the plaintiff must pay the costs in case the debtor pays the 
delit on or before its maturity. 
Interest In COT- Sec. 256. 'J'he rights or shares which such defendant mav 

ptiratlotis or as- . ' i • j.i . i ^ • . • 

sociiitions liable havc in any vessel or in the stock oi any association or corpora- 
isro XIV., §i58; tion, together with the interest and profits thereon, and all other 
i8sa, xvui.,4"ji p^.Qpgj.^y in this State of such defendant, except that exemiit 
from attachment by the Constitution, shall be liable to be at- 
tached, and levied upon, and sold, to satisfy the judgment and 
execution. 
Attachment, SeC. 257. The execution of the attachment upon any such 
on" rvropmy"\ni rigiits, shares, or any debts or other property incapable of manual 
uauk'ihvrr"' delivery to the Sheriff or Constable, shall be made by leaving a 
i/;., 82.-)9. certified copy of the warrant of attachment with the President 
or other head of the association or corporation, or the secretary, 
cashier or managing agent thereof, or with the debtor or indi- 
vidual holding such property, w4th a notice shoAving the proi^ertyj 
levied on. 



OP Sor'i'II CAIfOIJNA. 109 

A. D. IWM. 

Sec. 258. \\ luMieviT th(! SliciilT (»j- Constable shall, with a ' ^ ' 

Avarraiit of attachiiicnt (»r lixi-culio)! against the defendant, ajiply <i<-i<-ruia'ni'M in- 
to such ollicer, debtor, or individual, for i\w ])ur]K)so of attach- himkhi." 
ini; or levying u])on sucli i)ro])crty, sucli otliccr, del)t(»r or indi- ^''^ 83uo. 
vidua! .shall furnish him a eertiticate, under liis hand, designat- 
ing tlie nnnil)or of rights or shares of the defendant in the 
stock of such association or corporation, witli any dividend or 
encumbrance thereon, or the amount and description of the 
l)roperty held by such association, corporation, or individual for 
the benefit of or debt owing to the defendant. If such ofhcer, 
debtor or individual refuse to do so, he may ho required by the 
Court or Judge to attend before him, and be examined on oath 
concerning the same, and obedience to such order may be en- 
forced I)y attachment. 

Sec. 259. Ill case judgment be entered for the plaiutilf in Juritmieni,how 

satisued. 

such action, the Sheriff or Constable shall satisfy the same out of i/j.. §aui^^ — 
the ])roperty attached by him, if it shall be sufficient for that 
purpose : 

1. By paying over to such plaintiff the proceeds of all sales of 
perishable property, and of any vessel, or share or interest in any 
vessel, sold by him, or of any debts or credits collected by him, 
or so much as shall be necessary to satisfy such judgment. 

3. If any balance remain due, and an execution shall have 
been issued on such judgment, he shall proceed to sell, under 
such execution, so much of the attached property, real or per- 
sonal, except as provided in subdivision 4 of this Section, as may 
be necessary to satisfy the balance, if enough for that purpose 
shall remain in his hands ; and in case of the sale of any rights 
or shares in the stock of a corporation or association, the Sheriff 
or Constable shall execute to the purchaser a certificate of sale 
thereof, and the purchaser shall thereupon have all the rights 
and privileges in respect thereto which were had by such defend- 
ant. 

o. If any of the attached property belonging to the defendant 
shall have passed out of the hands of the Sheriff or Constable 
Avithout having been sold or converted into money, such Sheriff 
or Constable shall repossess himself of the same, and for that 
purpose shall have all the authority which he had to seize the 
same under the attachment; and any person who shall willfully 
conceal or withhold such property from the Sheriff or Constable 
shall ])(i liable to double damages, at the suit of the jiarty in- 
jured. 



no CODE OF CIVIL PROCEDURE 

A. 1). ISiU. 

' ^ 1. Until the judgment against the defendant Bhall be paid, the 

Shi'rilV or Constable may jjroceod to follcct the notes and other 

evidences of debt, and the debts that may have been seized or 

attached under the warrant of attachment, and to prosecute any 

bond he may have taken in the course of such proceedings, and 

apply the proceeds thereof to the payment of the judgment. 

At the expiration of six months from the docketing of the 

judgment, the Court sliall have jiower, upon the petition of the 

l)laintiff, acconi})anied by an allidavit, setting forth fully all the 

proceedings which have been had by the Sheriff or Constable 

since the service of the attachment, the property attached, and 

the disposition thereof, and also the affidavit of the Sheriff or 

Constable that he has used diligence and endeavored to collect 

the evidences of debt in his hands so attached, and that there 

remains uncollected of the same any part or portion thereof, to 

order the Sheriff or Constable to sell the same, upon such terms 

and in such manner as shall be deemed proper. Notice of such 

application shall be given to the defendant, or his attorney, if 

the defendant shall have appeared in the action. In case the 

summons has not been personally served on the defendant, the 

Court shall make such rule or order, as to the service of notice 

and the time of service, as shall be deemed just. 

When the judgment and all costs of the proceedings shall 

have been paid, the Sheriff or Constable, upon reasonable de- 

2iiand, shall deliver over to the defendant the residue of the 

attached property, or the proceeds thereof. 

If the attachment is a foreign attachment, it is only a proceeding iu rem., 
unless the defendant appear ; and if he fail to appear, the Ck)urt cannot ren- 
der a judgment that would have any eflfect beyond the property attached and 
so subjected to a lien. — Stanley v. Stanley, 3.5 S. C, 1)4. 

When action Sec. 260. 'I^he actions herein authorized to be brought by 
i(\rof^^c[e'fen*d- the Sheriff or Constable may be prosecuted by the jjlaintiff, or 
mii"d Vy ^t'^lfp under his direction, upon the delivery by him to the Sheriff or 
a'tion'm whk?ii Constable of an undertaking, executed by two sufficient sureties, 
ii^ued'^'^"""^ to the effect that the plaintiff will indemnify the Sheriff or Cou- 
1670, XIV., gici stable from all damages, costs and expenses on account thereof, 
not exceeding two hundred and fifty dollars in any one action. 
Such sureties shall, in all cases, when required by the Sheriff or 
Constable, justify by making an affidavit that each is a house- 
holder, and worth double the amount of the penalty of the bond 
over and above all demands and liabilities. 



OF SOITH CAKOLINA. Ill 

A. U. lMi«. 

Sec. 261. II 'li'' foreicfii corjJDi-aiion, or ahscnt or ahscond- ^-^r^— ' 
iii<; or concealed defendant, recover judi^rneiit a<(ain.st the on"utui<Viin.t,i. 
l)laintiiT in such action, any bond taken hy the SlierifT or Con- on**jur'riJ'iir.^'M"t 
stal)le, except such as are mentioned in the hist Section, all the ''"" '''■f''"'|'""- 

'■ I 11., i '■^hi, 

proceeds of sales and moneys collected hy him, and all the prop- 
erty attached remaining in his hands, shall be delivered by him 
to the defendant, or his agent, on request, and the warrant shall 
lie (lischarLrcd and the ])ro])crty released therefrom. 

Sec. 262. Whenever the defendant shall have appeared in umriiartf.- <. f 
such action, he may apply to the officer who issued the attach- ?iiinra'">f'pn",'l 
ment, or to the Court, for an order to discharge the same ; and pHis uj '(Mi'mi' 
if the same be granted, all the proceeds of sales and moneys col- Jl{?aranV'iu the 
lectcd l)y him, and all the property attached remaining in his "'""''"• 
liands, shall l)c delivered or paid l)y him to the defendant or his 
agent, and released from the attachment. And where there is 
more than one defendant, and the several property of either of 
the defendants has been seized by virtue of the order of attach- 
ment, the defendant whose several property has been seized may 
apply to the officer who issued the attachment for relief under 
this Section. 

Defendant having given bond under next Section does not thereby waive 
his right to have attachment discharged under this.— Bates y. Killiau, ITS. 

c, rm. 

Circuit Judge, on motion upon notice, may discharge an attachment at 
chambers. — Cureton v. Darr/an, 12 S. C, 122. 

Refusal to so discharge the attachment is res adjudivata as to moving part>', 
and he cannot raise the question again in formal nwit.— Darby v. Shannon, V.) 
S. C, .520. 

Such discharge may be had either for invalidity or irregularity of the attach- 
ment.— <S'»u7/i v. Walker, (J S. C, 1(5!) ; Brown v. 3/orri.s, 10 S. C, 407 ; C/rti(.s- 
sen V. Fultz, 13 S. C, 47(5 ; Cureton v. Danjan, 12 S. C, 122 ; Darby v. Shan- 
non, V.) S. C, 52(5 ; Bates v. Killian, 17 S. C, 5.53 ; Ke/'chner v. McCormac, 2.5 
S. C, 4(51. 

Such motion to discharge the attachment on partnershi]) property agiiinst 
non-resident partner gi-auted upon the di.sclosure of the fact by the i)apers 
and aflidavits that the non-resident had no other property here. — WhilJ'ulil v. 
lluvey. :iOS. C, 117. 

Sec. 263. Upon sucli application, the defendant shall deliver undertakinn 
to the Court or officer an undertaking, executed by at least tw() ;',^,. J,',"^'J},';'„,^^ 
sureties, who are resident ami freeholders or Jiouseholders in this /'.., fl-co. 
State, approved by such Court or officer, to the effect that such 
sureties will, on demand, ])ay to the })laintitT the anu^unt of 
judgment that may be recovered against the defendant in the 
action, not exceeding the sum specified in the undertaking, which 
shall be at least double the amount claimed by the plaintilT in his 
complaint. If it shall appear by aflidavit that the property 



112 CODE OF CIVIL riiUCEDURE 

A. D. IFW. 



""- — -^ ' attached be less than the amount claimed by the plaintiff, the 

Court, or officer issuing the attachment, may order the same to 
be appraised, and the amount of the undertaking shall then be 
double the amount so appraised. And in all cases the defendant, 
or any person who est;iblishes a right to the property attached, 
may move to discharge the attachment, as in the case of other 
provisional remedies. 

And where there is more than one defendant, and the several 
property of either of the defendants has been seized by virtue of 
the order of attachment, the defendant whose several property 
has been seized may deliver to the Court or officer an undertak- 
ing, in accordance with the provisions of this Section, to the 
effect that he will, on demand, pay to the plaintiff the amount of 
judgment that may be recovered against such defendant. And 
all the provisions of this Section applicable to such undertaking 
shall be applied thereto. 

Assignee under deed of assignment of defendant cannot move to discharge 
attachment until he has established his right to the property under issue on 
his return to the attachment. — Copeland v. In. Co., 17 S. C, IIG ; Mctts v. In. 
Co., 17 S. C, 120 ; Bryce v. Foot, 25 S. C, 4ti7 ; Ex Parte Dickinson, 29 S. C, 
453. 

TVhen third party intervenes and claims right to the property, such claim- 
ant should be actor on trial of issue of ownership. — Central R. R. Co. v. Geor- 
gia Co., 32 S. C, 319. 

When Sheriff Sec. 264. AVhen the warrant shall be fully executed or dis- 
tachraent,'^ wuh charged, the Sheriff or Constable shall return the same, with his 
thereon. ^ proceedings thereon, to the Court in which the action was 
i87o;xivTri2^6. brought. 



CHAPTER V. 
Provisional Remedies. 



Sec. '-JCo. Powers of Court as to RecelTere, deposit of money, 4c., In Conrt. and other pro- 
visional remedies ; judgment for sum admitted due. 

Powers of Scctioil 265. A Receiver may be appointed by a Judge of 

cei'^.^'*"^' tb® Circuit Court, either in or out of Court : 

1S70, XIV., 6267. 1. Before judgment, on the application of either party, when 
he establishes an apparent right to property which is the subject 
of the action, and which is in the possession of an adverse party, 
and the property, or its rents and profit?, are in danger of being 
lost, or materially injured or impaired ; except in cases where 



OF SOUTH CAKUi.INA. 113 

A. n. iH^'4. 
judgment ii])oii railinf to answer may he liad w iilioiil ajijilioation 
to the Court. 

■-i. Alter judgment, to carry the judgment into ellect. 

;J. After judgment, to dispose of the property according to the 
judgment, or to jireserve it during the pendency of an a|)i)eal. or 
u hen an execution has l)een returned un.sati.slied, and the judg- 
ment debtor refuses to :4)j)ly Iiis property in satisfaction (^f tiie 
judgment. 

4. Wlien a corporation has been dissolved, or is insolvent, or 
in imminent danger of insolvency, or has forfeited its corporate 
rights ; and, in like cases, of the property within this State of 
foreign corporations. Receivers of the property within this State 
of foreign or other corporations shall be allowed such commis- 
sions as may be fixed by the Court appointing them, not exceed- 
ing five per cent, on the amount received and disbursed by them, 

5. In sucli other cases as are now provided by law, or may be 
in accordance with the existing practice, except as otherwise pro- 
vided in this Code of Procedure. 

In application for Receiver under subcli\ision 1 he may be appointed under 
subdivision 2. — Green v. Bookhart, 10 S. C, 417. 

Receiver may be appointed in supplementary proceedings without notice.— 
Dilling v. Foster, 21 S. C, 338. 

Although another Judge upon application of other creditors had pre\iously 
refused to do so. — Dauntless Co. v. Davis, 'J2 S. C, .584. And notwithstanding 
creditors" action in another Court and a previous assignment by debtor.— /?>. 

But there can be only one Receiver so appointed.— S^ja/'A\s v. Daiis, 2.5 S. 
C, 381. 

Receiver may be appointed at chambers. — KiUjore v. Hair, 19 S. C, 4% ; 
Ileaenstein v. Pearlstein. .30 S. C, l'.)2 ; Harmon v. Wn(jener, "<'3 S. C, 487. 

But the power is a delicate one and must be exercised with great care.— 
Pelzer v. Hughes, 27 S. C , 408. 

The Ma-ster of the Court cannot be appointed Receiver.— A'j7(;or<' v. Hair, 
I'.tS. C, 48(i. 

Admissions in answer are sufficient evidence on motion for appointment of 
R*"ceiver. — ^[einhard v. Stricklayid, 2'.i S. C, 4'.)1. 

Where President and Directors of an insolvent railroad are directed by the 
Court to continue in i)ossession of the property under order of and subject to 
the Court, they are thus made Receivers. — In Re Mortyaye lionils, 1.5 S. C, 
314 ; Ex Parte Bronm, 15 S. C, 531. 

Where complaint claims title to land and seeks to recover it and alleges in- 
solvency of defendant and danger of loss of rents, and all these are denied in 
answer, there is no case for appointment of Receiver.— L><'H'«// v. Kiiiard, lit 
S. C, 2',)3. 

Even under A.ssignment Act creditors cannot have Receiver appomtinl to 
take charge of the tussigned estate, where they have not exhausted their legal 
remedies, nor show danger of loss of property or injury thereto.— iV/rcr v. 
Iluyhes, 27 S. C, 40H. 

But upon showing of insolvency, ni'gligence and incompetency on tin- i<art 
of the a.ssignee, satisfactory to the Judge, he was justified in ui)pointing a 
Receiver.— iiVj/fns^t'in v. Pearlstein, 30 S. C, 1".I2. 



114 CODE or ( I\ IL i'KOCKDURE 

A. D. 18W. 

^— "^^~^ S*) in aotion by expcutor to maixhnl UKwts, where he is shown t« be Ruilty of 
lui.scoiulutt.and that In- amlt-sUite were iiLsolveut, creditors could, without ex- 
hausting their legal rcniedics, have Receiver appointed. — Hannun v. Wuijener, 
i«S. C.,487. 

Unless mortgagee establishes an apparent right f>r claim to the assets and 
proflts, he is not entitled to have a Receiver thereof apiKtintedm his action for 
foreclosure.— //a/Y/iu v. Hardin, ;i4 S. C, 77. 

Even though the mortgagor be insolvent and the property insufficient to 
pay the mortgage. — Hciipiimis v. Pate, ;5l' S. C, l.U. 

Receivers may be appointed by the Court to make sales under its orders. — 
Clyburn v. Jicynolds, .Jl S. C, 1)1. But a Receiver was properly appointed in 
an action for partition where the party in possession was insolvent.— .VcCVrtf/y 
V. Jones, 81) S. C, 18<». 

Receiver need not give bond to collect rents in x>ending action. — DeWall v. 
Kinard, lit S. C, 21»:i Nor is bond essential for Receiver appointed in supple- 
mentary proceedings. — Dilliny v. Foster, 21 S. C, ;i38. 

Deposit of When it is admitted, by the pleading or examination of a party, 
Court!' ^^" *° ^^^^ ^6 1^^^ ^^ ^^s possession, or under his control, any money or 
other thing capable of delivery, which, being the subject of liti- 
gation, is held by him as trustee for another party, or which 
belongs or is due to another party, the Court may order the same 
to be deposited in Court, or delivered to such party, with or 
without security, subject to the further direction of the Court. 
other provi- Whenever, in the exercise of its authority, a Court shall have 

sional remedies. jjj.ij-j.ii' i- -i 

ordered the deposit, delivery or conveyance of money or other 
property, and the order is disobeyed, the Court, besides punish- 
ing the disobedience as for contempt, may make an order requir- 
ing the Sheriff or Constable to take the money or property, and 
deposit, deliver or convey it, in conformity with the direction 
of the Court. 
Judgment for When the answer of the defendant expressly, or by not deny- 
due™ ** " ing, admits part of the plaintiff's claim to be just, the Court, on 
motion, may order such defendant to satisfy that part of the 
claim, and may enforce the order as it enforces a judgment or 
provisional remedy. 

Wbere plaintiff admits part of defendant's counter-claim to be just, plaintiff 
is entitled to judgment for excess of his claim as in case of default, as under 
Section -iHL—Bxirycs v. PoUitzer, 19 S. C, 4ol. 



OF SOUTH CAROLINA. 



TITLE VI I r. 

OFTIIE TKIAL AND .1 C iXi.M KN'I' IN CI \ 1 1> ACTIONS. 

CiiAPTEU I. — Jndiiinenf upon Fdilnre hi Answer, cfv. 

CiiAPTKK U.—Issiu's, (Hid fhe Mode of Trial. 

Chaptkr lU. — Trial di/ Jury. 

Chaptkr IV.— Trial bi/ fhe Covert. 

C II A PT E R \. — Tr ia I by Refe rees. 

Chapter \l. — Of the Manner of Enter iny Judynicnt. 




CHAPTER I. 

Judgment upon Failure to Answer, &,c. 



Sec. 

8CG. Judgmeut deflned. 

20r. Judgment on failure of defendant to 
answer, or for excess over counter- 
claim, where service of summons by 
publication. 



Sec. 



208. Judgment on frivolous demurrer, 
answer or reply. 



Section 266. A judgment is the final determination of the judgment de- 
rights of the parties in the action. \m'x\v sacs" 

A judgmeut must ascertain and fix these rights to an extent amounting to a 
substantial termination of all the issues.— /)t»io/f/so>i v. Rank, 4 S. C, IOC ; 
Agiu'w V. Adams, 24 S. C, 8G. It is erroneous if based on grounds not raised 
by the pleadings.— .V«r/ore»^ v. Richard, 2~ S. C, 272. 

When granted upon contract, it determines what the contract is and closes 
it, giving the means of enforcing it or redress for its breach.— .Voo/r v. Hol- 
land, n; S. C, 15. 

Judgment is not invalid because Circuit Judge made a mistake in the head- 
ing of it.— Woodward v. Woodward, 3(5 S. C, 118. 

A decree cannot be regarded as final that leaves in doubt the question 
whether in the end the plaintiff will be entitltd to recover.— Z)oti«/(/.so»i v. 
Bank, 4 S. C, 10(5. 

To entitle a decree to rank a.s a final judgnu-nt for money it niu.st a.scertaiu 
a definite sum to be paid and order its payment, and authorize execution 
therefor.— /> Parte Farrars, Ki S. C, 2.")4. But where the decision disiH)ses 
of all the i.s.sues and directs judgment for balance due on a former judgment 
particularly stated in the record and orders execution for the amount to be 
asct-rtained by the calculation of Clerk, it is a final judgment.— -It/ icAys v. 
Allisnu, 21 S. C, 24.'}. 

Sec. 267. Judgment nuiy be had, it' tlie defendant fail to Judgment on 

, ' fiillun» of d e- 

answer the complaint, as follows : f«ntiimt t«. an- 

. I . 11- sMtr, or fort'x- 

1. In any action on contract the nlaintifT niav file ijroof (»f <•<•«.» <>v.t n.un- 
lawiul service of summons and coiiiphiint on one or more of the inm, \ i v., 
defendants, or of tlie summons, according to provision of Sec- .wl'isic-yxvin".' 
tion 151, and tluit no api)earancc, answer or demurrer has been 1^= '^'' -^^ "•• 



116 CODE OF CIVIL rUOCEDL'liE 

A. D. 1604. 



— ' served on liim. It shall be the dut}' of the Clerk to place all 
such cases on the default calendar, and said calendar shall be 
called the first day of the term. When the action is on a com- 
jilaint for the recovery of money only, jud^niient may be given 
for the plaintiff by default, if the demand be liquidated ; and if 
unliquidated, and the plaintiff itemize his account and append 
thereto an affidavit that it is true and correct and no j)art of the 
sum sued for has been paid, by discount or otherwise, and a copy 
be served with the summons and complaint on the defendant, 
and the defendant shall neither answer, demur nor serve notice 
of appearance, the plaintiff shall have judgment for the sum 
sued for as in the case of liquidated demands. But in cate notice 
of appearance in an action has been given by or on behalf of a 
defendant, but no answer or demurrer has been or thereafter 
shall be served within the time required by law, the plaintiff, 
upon filing proof of such facts, shall have his judgment by 
default against such defendant in the same manner and with 
like effect as in cases where no notice of appearance has been 
given. In all other cases the relief to be afforded the plaintiff 
shall be ascertained either by the verdict of a jury, or in cases 
in chancery by the Judge, with or without a reference, as he 
may deem proper. The order for judgment in such cases shall 
be endorsed upon or attached to the complaint. 

Where the defendant, b}' his answer in any such action, shall 
not deny the plaintiff's claim, but shall set up a counter-claim 
amounting to less than the plaintiff's claim, judgment may be 
had by the jilaintiff for the excess of said claim over the said 
counter-claim, in like manner in an}' such action, upon the 
plaintiff's filing with the Clerk of the Court a statement ad- 
mitting such counter-claim, which statement shall be annexed to, 
and be a part of, the judgment roll. 

Where time to answer expires after day fixed for opening of Court, but be- 
fore Court is actually opened, and no appeai'ance, answer or demurrer has 
been served, the case may be docketed and judgment by default taken.— Jfc- 
Conmb v. Woodside, 13 S. C, 47J). 

The omission of the words, "have judgment,'' in the Judge's order for judg- 
ment endorsed on the complaint is merely clerical, and docs not vitiate the 
judgment. — Hrnlen v. Graham, 32 S. C, -Wi. 

"When defendant does not deny plaintifif 's claim, but sets up a counter-claim, 
the plaintiff upon filing with the Clerk an admission of 8uch counter-claim is 
entitled, on call of default docket, to judgment for excess claimed above the 
counter-claim. — Buryes v. Pollitzer, 1!) S. C, 451. 

When senioe 2. In actions where the service of the summons Avas by publi- 

?ubuSuo°n.^ ^^ cation, the plaintiff may. in like manner, apply for judgment, 

and the Court must thereupon require proof to be made of the 



i 



OF SOUTH CAROLINA. 117 

■ " " / A. D. 1W4. 

(Icmaiul iiiciitioiUMl in tlic. (•(HiiplaiiU. ami if llic (icfciidaiit Ix- ^— ~.^~~-^ 

Tn»t a resident of the State must ivfjuiro the pluintilT or his agiTit 

to he examined, on oath, respectin<( any payments that liave been 

made to the phiintilT, or to any one for his use, on account of 

such (h'mand. and may render jud^nnent for tlie amount whieh 

he is entitled Lo recover. Before rendering judgment, theC'(jurt 

may, in its discretion, require the plaintiff to cause to be filed 

satisfactory security to al)ide the order of the Court touching 

the restitution of any estate or effects which may be directed by 

such judgment to be transferred or delivered, or the restitution 

of any money that may be collected under or by virtue of such 

judgment, in case the defendant or his representatives shall apply 

and he admitted to defend the action and shall succeed in such 

defense. 

Sec. 268. Il ii demurrer, answer or reply be frivolous, the JiKifnuent on 
party ])rejudiced thereby, upon a previous notice of five days, murrer, answer 
may apply to a Judge of the Court, either in or out of the Court, i^ro, xiv., iso. 
for judgment thereon, and judgment may be given accordingly. 

An answer, to be adjudged frivolous, must be clearly so in its whole scope 
and bearing, and not merely through a formal defect that might be cured by 
amendment. If argument is necessary to show its character as frivolous, the 
Court will not disix)se of it as such. — Boylston v. Crews, 2 S. C, 422. 

An answer is frivolous when it fails to deny any allegation of the complaint 
or to state any new matter by way of defense. — American Co. v. Hill, 27 S. 
C, IW. 

But to make the an.swer frivolous the objection must extend to and embrace 
the whole answer, so that nothing is left of it that can entitle the party to 
trial.— r/ifoui v. Seabrook, S. C, 113. So that answer that presents two 
issues material to plaintiffs case is not frivolous. — Hall v. Woodiuard, ."(5 S. C, 



CHAPTER II. 
Issues and the Mode of Trial. 



Sec 

269. The dllTprent kinds of Issues. 

270. Issue of law. 

271 . Ksuc of fact. 



Sec. 
275. Issues triable by the Court. 
27U. Suiiiinonsanil conipluint to Im> tiled in 
Clerk's (illlco ; diK-ketUiK oasw. 



27-. Oil Issues of both law and fact, the '-177. SteiKinniphei-s to be appointed by the 



Lssui-s to be tried toffetlier. 
273. Trial (l.llu.'d. 
27-1. Issues, liow tried. 
271(1. How Issues of fact In (Miulty ciuscs ' calendar. 

framed ami tried. ! 



Clri'ult .lud^'es; salaries and dutleH. 

278. Stenographers t<i furnish copies; fees. 

279. Order of dlsrH>slnj,' of l.ssues on the 



Section 269. Issues arise ui)on the pleadings wlu'ii a fact or .^j,,, ,„ff,.r,,nt 

conclusion of law is maintained by the one i)artv and ,(,ntro- '""''•"' ""■'^"""* 

' 1^70 XIV. fl*ri 

verted bv the other. Thev are of two kinds — 



118 CODE OF CIVIL PROCEDURE 

A. D. 1894. » 

' v ' 1. Of law : and, 

•>. Of fart. 
iffluoof law^ Sec. 270. An issue of law arises— 

ib-.e^i-'. 1. upon a demurrer to the complaint, answer or reply, or to 

some part thereof. 

11. R. Co. V. Gibbcs, 2:J S. C, 370. 

Sec. 271. An issue of fact arises — 
"iTTis*"^*^ 1. Upon a material allegation in the complaint controverted 
by the answer ; or, 

2. Upon new matter in the answer controverted by the re- 
ply ; or, 

3. Upon new matter in the reply, except an issue of law is 
joined thereon. 

Sec. 272. Issues, both of law and of fact, may arise upon 
both la'w^nd dili'crent parts of the pleadings in the same action, 
[o'be^ tried""^ In such case the cause shall be placed on the Calendar of issues 
^Th%:i; im, of fact, and the issues shall be tried together, unless the Court 
XIV., 1498. otherwise direct. 

Sec. 273. A trial is the judicial examination of the issues 
i3707iiv^§2>5; between the parties, whether they be issues of law or fact. 

Meetze v. /?. R. Co., 23 S. C, 1. 

Sec. 274. An issue of law must be tried by the Court, as 
tn^l^_^ also cases iii chancery, unless they be referred as provided in 
I6.,82re. Chapter 5 of this Title. An issue of fact in an action for the 
recovery of money only, or of specific real or personal property, 
must be tried by a jury, unless a jury trial be waived, as pro- 
vided in Section 288, or a reference be ordered. 

This Section not affected by the Master's Act— lt> Stat., 60&.— Chapman v. 
Lipscomb, 15 S. C, 470. 

This Section specifies the cases in which a trial by jury may be demanded as 
a legal right.— RoUin v. Whijiper, 17 S. C, 32. 

An action to set aside a deed of Sheriff on the ground that the judgment 
debtor held the laud as trustee for plaintiff, is not an action to recover real 
property. — Price v. Boxven, 4 S. C, 151. 

Title to land must be so tried ; it cannot be tried on motitm by assignee of 
land to discharge attachment therfion.—Copchtnd v. Piedmont In. Co., 17 S. 
C, 11<». And defendant does not waive the right by failure to demand it. 
DeWalf V. Kinard, V.) S. C, 2S»5. 

An action for the recovery of money only does not require a jury trial, 
unless the pleadings raise an issue of fact.—/?. R. Co. v. Gibbcs, 2:j S. C, 370. 
If the only is.sue raLsed is one of law, it must be tried by the Court.—/?'. 

An action for partition, where the question of title arises, it is not an issue 
out of chancery, but for trial by a jury at law.— -4f/i<Av.s v. Lounj, 12 S. C, 
97 ; Brock v. Nelson, 21) S. C, 49 ; Remnn V. Spann, 28 S. C, .530 ; Carrigan V. 
Evans, 31 S. C, 2(J2 ; Capel v. Moses, 3(i S. C, 559. Or where in equity cause 
defendant sets up title to land in controversy which, if sustained, would 



OF SOUTH CAROLINA. lit) 

" A. D. IH'.H. 

(Icfont the action, lu> is entitled to ii jvii y trial of that \Hnne.—Aili(hrs v. ""— ^/— ^ 
Lowry, V2 S. C, lOH ; Coupiv v. Smith, 1(1 S. ('., ;W:i ; Hinith v. Iir\ici\ 17 S. C, 
544; Chapman v. LipHcoinh, IS S. C, 'J:{2 ; iJrwalt. v. Kinanl, 11) S. C.,2S»; 
AffO*'*' V. //«//, 23 S. C, ;{ss ; Sale v. Meygif, 'St H. C, 72 ; liruyin v. JUahop, 
25 S. C, nSo ; /V/z<T V. IhKjhi-s, 27 S. CJ., 4IS ; Dnpnnt v. DiiHim, rCl S. C, .'Mt. 
But where the m-tioii is in e(iuity for cancellution of (l«io(l for fniud, a trial by 
jury is not (leiniiudnble of rliiht.— J )iij)(int v. Diilioa, '.y.\ S. C, iJH'.t. 

Where a defeudaut is entitled to siHicittc porsonul property in hands of ex- 
ecutor, luiswers the complaint and agrees to a reference to the Master of all 
the issues, he thereby waives rij,'ht to a trial by juiy of his title to such projj- 
erty.— Trrnholin v. Monjan, 2.s S. C, 2<!8. 

Ou uppeid from Probate C'oiu-t there is only a right of jury trial of those 
issues reiiuired to be so tried by this Section. — Stmvart v. JJlrasc, 4 S. C, .i7 ; 
Lui-ki'H V. Wichman, 5 S. C, 411 ; Prater v. Whipple, K) S. C, 40; IMlin v. 
U'hipprr, 17 S. C, 32 ; Ex Parte WJiite, 33 S. C, 442 ; Ex Parte Ajx'ler, :« S. 
v., 417. 

Sec. 274a. lu all equity causes the presiding Judge may, in How l-wups o( 
his discretion, cause to be framed an issue or issues of fact, to be (•au.si's"may " be 
tried by a jury, which shall be tried at the same term of Court iriwi. 
at which they are ordered, and if necessary a day shall be set for ^''''-'O' x^« •»**. 
the trial oi* the same, but a continuance may be ordered by the 
Court in proper cases. 

Upon the first day of the term immediately after the call of 
Calendar Three, the presiding Judge shall call for cases in which 
such issues are desired, and if any are presented in which such 
issues are, in his judgment, proper, he shall at once cause the 
same to be framed and placed upon the jiroper Calendar for trial, 
and the findings of fact upon such issues by the jury shall be 
conclusive of the same ; but the presiding Judge may grant new 
trials therein, according to the practice of other jury trials, and 
exceptions to the rulings of the presiding Judge may be taken by 
either party, and such rulings may be reviewed by the Supreme 
Court upon appeal from the final judgment. 

At some time during the term the i)residing .Judge shall hear 
the cause out of which such issues are ordered, and shall, some 
time during said term or thereafter, file his decision therein as 
ill other equity causes, from which decision there shall be the 
right of appeal. « 

Sec. 275. Every f)ther issue is triable by the Court, which, Lssurs triable 

I 1 ii 1 1 • ' -i- i- , by the Court. 

Iiiiwcvc)-, may order tJie whole issue, or any specilic question of ~7/, j.>77 — 
fact involved therein, to be tried by a jury, or may refer it, as 
ju-nvided in Sections 2^2 and 29,3. 

This Section not affected by Master's Act — 1(5 Stat., C)OS.—Lipscimil> v. Chap- 
man, 15 S. C, 470. 

Constniing this and preceding Section together, it is conclusive that there 
are two general modes of trial, i. c, trials by Court and trials by jury. To the 
Court belongs all issues of law and all cases iu chancery, aud to the jury all 



120 CODE OF CIVIL PROCEDURE 

A. D. 18M. 

^— — ^r""— ^ questions of fact in cases at law for the recovery of money or of any specific 
real or personal property. — .Vprfze v. li. R. Co., 2:1 S. C, 1. 

Under this Section a party has no nght to demand a jury, nnless he pro- 
ceeds according to 2sth Rule of Circuit Court.- X,ucAr<»n v. Wichman, 5 8. C, 
411 ; £vr Parte Ajjeler, U=> S. C, 417. 

The mode of trial, whether by the Judge, a referee or a jurj', is discretion- 
arj- with the Court. — Lvcken v. Wirhman, '> S. C, 411. 

The Constitutional declaration that "the right of jury trial shall remain 
inviolate" does not apply to cases within the equitable jurisdiction of the 
Court.— 76. And in such cases neither party has the right to demand a sub- 
mission of the issues to a jmy.—Pelzer v. Hvyhes, 27 S. C, 408. An action to 
set aside a Sheriff's conveyance of land, sold under execution, on the ground 
that judgment debtor held the land as trustee of plaintiffs, is an equitable 
action and triable by the Court. — Price v. Brown, 4 S. C, 1.57. 

Summons to renew execution is not case for issues out of chancery.— .4cfani« 
v. Richarclaon. 30 S. C, 217. 

Where Judge orders such issues of fact to be tried by a jury, he does so only 
that he may be aided by their verdict ; he is not to be controlled thereby. — 
Flinn v. Brown, C S. C, 20!^ : Gadsden v. Whaley, 9 S. C, 147 ; Iry v. Clau»sen, 
14 S. C, 273 : Small v. Small, 16 S. C, 70 : Grierson v. Harmon. 16 S. C, 619 ; 
Peake v. Peake. 17 S. C.,42.5 ; Pelzer v. Hughes, 27 S. C. 40^. And such find- 
ings of the jury are properly to be considered on new trial by the Judge as 
ordered by the Supreme Court. — Rynerson v. Allison, :iO S. C, o:U. 

But all equitable is.sues must be tried by the Judge either alone or with such 
aid of a jury.— Gadsden v. Whaley, 9 S. C. 147 : Sloan v. Westfield, 11 S. C, 
447 ; Adickes v. Lowry, 12 S. C, lOS : Cooper v. Smith, 16 S. C. :i31. 

A case involving cancellation of deed for fraud may be referred to the "blas- 
ter.— Dv.pont V. Dxi.Bos, :>3 S. C, S"^. 

On appeal from decree of Probate Court, declaring a paper offered for pro- 
bate no will, it was error in Circuit Judge to form issues and submit them to 
jury without notice to appellant, and a judgment based on verdict on such 
issues must be set aside. — Ex Parte Apeler, :i5 S. C, 417. 

Summons and Sbc. 276. In all issues to be tried by the Court or a jury the 
filed in Clerk's plaintiff shall, at least fourteen days before Court, file in the 

cases' Clerk's office the summons and complaint in the cause, endors- 

xy'r-^'iSi' i'^o thereon the nature of the issue and the number of the calen- 
iri^s;^^'^^^' ^^^ upon which the same shall be placed ; and if the plaintiff 
fail so to do, the defendant, seven daN's before the Court, may 
file copies of said papers with a like endorsement, and the Clerk 
shall thereupon place said cause upon its appropriate calendar, 
and it shall stand for trial without any further notice of trial or 
notice of i.ssue. 

There shall be three Calendars for the Court of Common Ple;i>. 
and the Clerk shall arrange the causes thereon as follows : 
Upon Calendar 1 shall be placed all cases and issues to be passfl 
upon by a jury. Upon Calendar 2 shall be placed all cases to 1 •■ 
passed upon by the Court, including all motions and rules to 
show cause. Upon Calendar 3 shall be placed all cases whci •• 
judgments by default are to be taken, and on the opening of the 
Court of Common Pleas this Calendar shall be called first in order. 



I 



OF sorrir Carolina. 




The Clerk shall, uitliin twenty days after every adjoummeiit 
of till- Court of Comnum Pleas, carry forward on Calendars 
numl)ers one and two for trial or hearing at the next term all 
causes not linally disposed of at the preceding term, and shall 
enter in regular (»rdcr all subse(|ucnt causes, duly filed and 
endorsed as above i)rovidcd, and upon entering the same shall 
endorse upon the summons the date of filing, the numher of the 
Calendar in which the cause is entered, and its number on the 
Calendar. In case of his failure to comply with any of the 
requirements of this .Section, the Clerk shall forfeit all docketing 
fees for the term of the Court next succeeding. 

There is nothing in this Section which declares that failure to have the case 
80 docketed %\ithin a prescribed time after action begun puts a party out of 
Court.— //a(/oo(/ V. Jiilf}/. 21 S. C, 14:}. 

When the time for answering expires, after the day for the Court to open, 
but before it is actually oi^ened, the case may be put on Calendar 3 and judg- 
ment by default taken. — McComb v. Woodbury, 13 S. C, 479. 

Sec. 277. A Stenographer for each of the Judicial Circuits of stonngraphore 
the State shall be appointed by the resident Judge thereof, who by cTr^u'it 
shall be a sworn officer of the Court, and shall hold the office for ai'd^ti^. " 
the term of four years, subject to the power of the Judge to is«o"'xx^'3(!j'- 
remove him, at any time, upon sufficient cause being shown there- Jl^^'^^-^y \l^' 
for. Each Stenographer so appointed shall receive an annual :\K' U,: "i^Jl* 
salary as follows : The Stenograj)her of the First Circuit, eighteen ^;i: c'^»-' i'™.. 
hundred dollars, and the several Stenographers of the other Cir- 
cuits twelve hundred dollars ; such salaries to be paid by the State 
Treasurer in the same manner provided by law for the payment 
of the salaries of the Circuit Judges and Solicitors of the State. 
It shall be the duty of every Stenographer so appointed, under 
the direction of the presiding Judge of his Circuit, to take full 
stenographic notes of all proceedings, including the rulings and 
charge of the Court in every trial thereat ; and in case the presid- 
ing Judge, or the Solicitor for use in criminal cases, shall require 
a transcri])t of said stenographic notes, the Stenographer shall 
furnish the same written out in full. 

Sec. 278. It shall be the duty of the Stenograi)her to furnish stenoemphcre 
to any party to such tnals, upon request, a copy of the evidence copies; ft««*. 
and proceedings taken In* him in such trials, or of such jiart ^**(?^j j*^'^^: 
thereof as may be required, pn payment in advance, on liehalf of }i^|xix', ac- 
such i)arty, to the Stenographers of the First and Second Cir- ^'- **"•'' ^^•' 
cuits, respectively, of ten cents, and to the Stenographers of the 
other Circuits, resjjcctively, of three cents, for every huiulred 
words of the copy so furnished : Pnn'iiled, Said copy is furnished 
within ten days after the rising of the Court and written demand 



122 CODE OF CIVIL PROCEDURE 

A. D. 1894. 

■ V ' tliercfor and tender of said fees. Any sum so paid by any party 

siiall be considered a necessary disbursement in the taxation of 
costs. 

Order of dis- Sgc. 279. The issues on the Calendar shall be disposed of in 
on the calendar, the following Order, unless, for the convenience of parties or tlie 

ib.,%2si. dispatch of business, the Court shall otherwise direct : 

1. Issues of fact to be tried by a jury. 

2. Issues of fact to be tried by the Court. 

3. Issues of law. 



CHAPTER ill. 
Trial by Jury. 

Sec. I Sec. 

280. Trial. Separate trials . I 281. On a special finding with a general 

281. Court to be furnished with a copy of ' verdict, the former to control. 

the pleadings. | 285. Jury to assess defendant's damages 

280. General and special verdicts defined. [ in certain cases. 

233. When Jury may render either gen- 2SG. Entry of the verdict ; motion for new 

eral or special verdict, and when the trial. 

Court may direct a special finding. j 2S7. Motion for new trial, or for judgment 

on special verdict, where to be heard. 

Trial; separate Section 280. Either party complying with the requirements 
isro, xiv.,l282; of Section 21(j may bring the issue to trial, and, in absence of 
the adverse party, unless the Court for good cause otherwise 
direct, may proceed with his case, and take a dismissal of the 
complaint, or a verdict or judgment, as the case may require. A 
separate trial between a plaintiff and any of the several defend- 
ants may be allowed by the Court whenever, in its opinion, justice 
will thereby be promoted. 
Court to be Scc. 281. AVhen the issue shall be brought to trial by the 
a cony of the i")laintitt he shall furnish the Court with a copy of the summons 
Tb §283. ^'^"^ pleadings, with the offer of defendant, if any shall have 
been made. When the issue shall be brought to trial by the 
defendant, and the plaintiff shall neglect or refuse to furnish the 
Court with a coi^y of the summons and pleadings and the offer of 
the defendant, the same may be furnished by the defendant. 
General and ^qq, 282. A general verdict is that by which the jury pro- 
defined. nounce generally upon all or any of the issues, either in favor of 



ih.,i-:»i. 



the plaintiff or defendant. A special verdict is that by which 
the jury find the facts only, leaving the judgment to the Court. 
Sec. 283. In an action for the recovery of specific personal 
property, if the property have not been delivered to the plaintiff, 
or if it have, and the defendant by his answer claim a return 



OF SOUTH CAROLINA. 123 

A. D. IMM. 

tliriv(.r. Ihc jiiiT >li;ill :iss('ss the viiliir of the property if their ^^ — ' 
verdict be in favor of tlu- phm.tilT. or if tliov lin.i in favor of the mny'Te .1 li ' 'r 
defendant and that he \s entitled to a return thereof; and nniy or 'siUu'^Tr'-' 
at the same time assess the damages, if any are ehiir.ied in tho Z-\-ounV»a^y 
eoni])hiinr .>r answer, which the prevailing party has sustained S^" "'^'"'' 
by reason ot the detention or taking and witliliolding sudi proji- /^.,Si^■'. 
erty. 

In every action for the recovery of money only, or specific real 
property, the jury, in their discretion, may render a general or 
special verdict. In all other cases the Court may direct the jury 
to lind a special verdict in Mriting upon any or all of the issues ; 
and in all cases may instruct them, if they render a general vcr- 
dirt. to find upon particular questions of fact, to be stated in 
writing, and may direct a Avritten finding thereon. The special 
verdict or finding shall be filed with the Clerk and entered upon 
the minutes. 

Where plaintiff takes possession of the property, a verdict in the words 
" We find for the defendant the return of the property or .SoOT.Do," is in com- 
pHance with this Section.- Bard in v. Draffs, 10 S. C, 4'.«. But where the 
action is to recover "patteras" in foundrj^ proved to be worth ?;5,00n, and the 
Judge charged that defendants were entitled to a part thereof, the verdict 
in these words, "We find the plaintiff patterns the value of SlOO," does not 
identify the property, and is void.— Easun v. Kelly, 18 S. C, 381. 

In such action a verdict which calls for a delivery or return of the property 
is insufficient and illegal, unless it assess the value of the property, even 
though there be no testimony as to value. The Section is mandatory. -^-f/.son 
V. Kelly, 18 S. C, 381 ; Thomj^son v. Lee, Ifl S. C, 48!) ; Lockhart v. Little, MO 
S. C, ;526 ; Bobbins v. Slattery, 30 S. C, 328. 

Sec. 284. Where a special finding of facts shall be inconsist- ou special 
ent with the general verdict, the former shall control the latter, f^'S vmUct'! 
and the Court shall give judgment accordingly. [ont/oi'""^'^ '" 

Sec. 285. When a verdict is found for the plaintiff in an i«^f. xiv.,?-jsc. 
action for the recovery of money, or for the defendant when a set- ^il'IVuaTnTs 
off for the recovery of money is established beyond the amount SS°*""" 
of the plaintiff's claim as established, the jury must also assess "^ibTssw-: 
the amount of the recovery ; they may also, under the direction 
of the Court, assess the amount of the recovery when the Court 
gives judgment for the plaintiff on the answer. If a set-off, 
established at the trial, exceed plaintiff's demand so established, 
judgment for the defendant must be given for the excess : or if 
it appear that the defendant is entitled to any <ither alliniiative 
relief, judgment must be given accordingly. 

Sec. 286. 1. Upon receiving a verdict, the Clerk .-hall make kiuiv ..r u,e 
an entry in his minutes, specifying the time and place of the KlSriai!;;;; 
trial, the names of the jurors and witnesses, the verdict, and ^''•. s-^- 



lU CODE OF CIVIL PROCEDURE 

A. D. 1801. ~ ~~ 

' V ' eitlier tlie jiul^niK'iit riMulered thereon or an order that the cause 

be reserved for arf^iunent or further consideration. If a diifer- 
ent direction be not given by the Court, the Clerk must enter 
judgment in conformity with the verdict. 2. If an exception 
be taken, it may be reduced to writing at the time, or entered in 
the Judge's minutes, and afterwards settled as provided by the 
rules of Court, and then stated in writing in a case, or sei)a- 
rately, with so much of the evidence as may be material Ut the 
questions to be raised, but need not be sealed or signed, nor need 
a bill of exceptions be made. 3. If the exceptions be, in the 
first instance, stated in a case, and it be afterwards necessary to 
separate them, the separation may be made under the direction 
of the Court, or a Judge thereof. 4. The Judge who tries the 
cause may, in his discretion, entertain a motion, to be made on 
his minutes, to set aside a verdict and grant a new trial upon 
exceptions, or for insufficient evidence, or for excessive damages ; 
but such motions, if heard upon the minutes, can only be heard 
at the same term at which the trial is had. AVhen such motion 
is heard and decided upon the minutes of the Judge, and an 
appeal is taken from the decision, a case or exceptions must be 
settled or agreed upon in the usual form, upon which the argu- 
ment of the appeal must be had. 

Unless otherwise directed by the Court, the Clerk must enter judgment in 
conformity with the verdict or it wOl be void.— Eason v. A'«'//i/, lo S. C. 200. 
J 6., IS S. C, oSl ; Kaminitsky v. L'. A'., 'Jo S. C, 53. But where the judgment 
is based upon a verdict on an equitable issue, that shovdd have been tried by 
the Court, it is yoiO..— Gadsden v. Whaleij, S. C, 147 ; Sloan v. WcstJichI, 11 
S. C, 447 ; Cooper v. Smith, 16 S. C, 3ol. 

When, upon rendition of verdict, the Court ordered the case to be trans- 
fen-ed to Calendar No. 2 and that plaintiffs have leave to apply for judgment 
thereon, the Clerk could not enter judgment on the verdict.— n7<j7f'*u/«',s v. 
Barber, 22 S. C, 47. 

This Section, as to the power of the Judges in granting new trials, is not to 
be restricted by any construction of Cons., Art. IV., Sec. 2a.— Wood v. IL R. 
•.Co., I'J S. C.,57'.). 

This Section dispenses with the use of "bills of exceptions," and siibstitutes 
a statement of the exceptions taken at the trial, containing so much of th^ 
evidence as may be necessary to show the bearing of the exceptions.— Ca«<o 
v. Broek, 14 S. C, 104. 

Exceptions to the orders and rulings of the Judge may be taken at the trial,; 
and, if so taken, they need not be served within ten days after the rising o£ 
the Com-t.—Colei)tan v. Heller, 13 S. C, 491. 

The better practice is to notify the C'ourt at the time that the party "ex- 
cepts," and have it so noted on the record ; but it has been held that when it 
appears from {he record that the Judge was apprised that the party intended 
to rely on his propositions advanced by way of exceptions, that is suflacient to 
constitute an exception, though there is no formal request to note it.— Fox V. 
R R 4S. C.,543; 6'. C. R. R. v. \Vilmiu(/ton R. R., 7 S. C, 41(i ; Clark ▼. 
Harper, 8 S. C, 257 ; Coleman v. Heller, 13 S. C, 491 ; Godbold v. Vance, 14 
S. C, 4.58. 



OF SOUTH CAROLINA. 125 

" ~ A. D. IHOJ. 

Under motion for new trinl on tho minutoB, npon the ground of excessivo ''— v^"^ 
diimagos, the Circniit Jiid'jo has jiowcir to ordor n now trial, unloHS tho plain- 
tiff outer a roinittitur for a .sijccilicd amount.— Wiirrrn v. Lnijrimv, 1^'H. ('., 4.'i. 

Wlicre tho Judf,'o thnui,'ht tho ovidonco insutTici(!nt,biit rofuscd to Krant u»'W 
trial bocauso ho undcrratod his powor to do .so, iiiuh-r tho Constitution, ho 
committed error in law.— U'fjnf; v. R. li. Co., 1'.) S. C, .'>7tt. 

A Judge cannot grant such a new triid at chamlwrH. — CViaWf.s v. Jmohs, '> 
S. C, :J4S ; Clawsnti v. Untrhison, 14 S. C, F>2i). 

Where a ca.se for appeal has not been .settled or agreed on, it must be re- 
turned to Circuit for settlement. — Clialk v. Patterson, 4 S. C, l>8. 

Sec. 287. A motion for a new trial on a case or exceptions. Motion fomew 
or otherwise, and an a))plication for jmlgment on a s])ecial ver- ju.i «»,',. 'lu on 
diet or case reserved for argument or further consideration, mu.st, Th '"r e'*io''u- 
in the first instance, be heard and decided at tlie same term, ex- '"??'". k.-.. — 
cept that when exceptions arc taken the Judge trying the cause 
may, at the trial, direct them to be heard at some subsequent 
term, and the judgment in the meantime suspended ; and in 
that case they must be tlicre heard in the first instance, and 
judgment there given. And when, upon a trial, the case pre- 
sents only questions of law, the Judge may direct a verdict. 

" Same term" means the term at which the trial wtxs had. — Hinson v. Catoe, 
lOS. C.,3n. 

The Circuit Judge cannot hear a motion on the minute.s for a new trial after 
the term has ended. — Canton v. Brock, 14 S. C, 104 ; Molair v. li. li., ol S. C, 
.510. This and Section 2S() relate only to motions for new trials upon a gi'ouud 
arising out of something that occiuTed at the trial. — State v. David, 14 S. C, 
42S ; Clawson v. Hutchison, 14 S. C, 517 ; Sams v. Hoover, 38 S. C, 401. 

Referred to in Charles v. Jacobs, 5 S. C, 34!) ; Caston v. Brock, 14 S. C, 111. 



CHAPTER IV. 

Trial by the Court. 

8kc. i Sec. 

3i;.s. Triiil hy jiir}-, how waived. 290. Exceptions, how and when taken. 

■>''i. Ou trial by tlie Court, Judgment how ! Judcment at general lenn. 

given. Motion for new trial. ! 2fll. rroceidiugs upon Judgment on Is-sno 

of law. 

Section 238. 'I'rial by jury in the Court of Comnioii Pleas q^p;,,, i.yjury, 
iii.iv be waived by the several parties to an issue of fact in actions '"'"' ^^■"'*''<'- 

' lK*ll YIV A'^ICfl 

on contract, and with the assent of the Court in other action.^j, 
in the manner following : 

1. liy failing to appear at the trial. 

'Z. By written consent, in pcivon, or by attorney, fik-d with 
the Clerk. 

3. By oral consent in open Court, entered in the minutes. 

This Section in the tenns "actions on contract'' incUido.=! such actions as be- 
fore its adoption were recognized as actions at couunou law. — State v. I\. Ji.^ 
8S. C, 1-2<.K 



120 CODE OF CIVIL PilOCEDLlJE 

A. D. ISiU. 

"'- — ;■ ' Partj' may waive ripht to jurj' trial, by consenting to reference of such 

issues in the cause. — C'lVy Council v. liyitn, 22 S. C, 'X?.)\ Meetze v. li. li., 23 
S. C, 1 ; Martin v. Martin, 24 S. C, 44(5; Calvert v. Nichols, 2«) S. C, :»4 ; 
Archer v. Ellison, 28 S. C, 2:^8 ; lihodcs v. Jiussel, 32 H. C, SS") ; or by consent- 
ing to trial by the Court. — Whatiij v. Charleston, 5 S. C, 20(5 ; Mayruder v. 
Clayton, 2!t S. C, 407. 

But party cannot so waive such right by his conduct. — Sale v. Megyett, 26 
S. C, 72. 
(Vmrt'^"' u a^- Sec. 289. I'pon the trial of a question of fact by the Court, 
iiient, how jts decision shall be given in ■vvritiner, and shall contain a state- 

friven ; motion <^ ^ 

fornewtriaL ment of the facts found, and the conclusions of law, separately ; 

//».,»-.» . g^^^ upon a trial of an issue of law, the decision shall be made in 
the same manner, stating the conclusions of law. Such decision 
shall be filed with the Clerk within sixty days after the Court at 
which the trial took place. Judgment upon the decision shall 
be entered accordingly. 

The demand as to the form of the derision should be complied with.— T 7- 
sanska v. Bradley, 4 S. C, 288. 

But where there is no contest as to the facts, there need be no finding of 
fact.— Brifjfjs v. Winsmith, 10 S. C, 133. 

The nile is directory and not mandatory, and an omis.sion on the part of the 
Court to contain in its decision a statement of the facts found and the conclu- 
sions of law separately is not ground for reverstil unless it appear that apjiel- 
lant has suffered prejudice thereby, as to the merits of the case. — Joplin v. 
Carrier, 11 S. C, 329 ; State v. Columbia, 12 S. C, 393 ; Boukniyht v. Brown, 
10 S. C, 1()<; ; Brifjfjs v. Brigcjs, 24 S. C, 377 ; May v. Cavender, 29 S. C, 598. 

Where decision of the Court foimd a balance due on former judgment and 
directed execution thereof, the Clerk properly entered up judgment on the 
decision for the balance. — Garvin v. Garvin, 21 S. C, 83. 

The Judge has power npon hearing referee's report in law case to reverse, 
affirm or modify his finding of t&ct.— Meetze v. R. R., 23 S. C, 1 ; Griffith v. R. 
R., 2:i S. C, 25. 

Decision valid though filed more than sixty days after Court.— isTooH v. 
Munro, 11 S. C, 139. 

Exceptions. Scc. 290. 1- For the purjiose of an appeal, either party may 

ia\en; judg- cxccpt to a dccisiou Oil a matter of law arising upon such trial, 

term.''^^"^'™ Within toi daijs after written notice of the filing of the decision, 

ih., §292. order, or decree, as provided in Sections 8^4 and 3Jf5 : Provided, 

however, That where the decision filed under Section 280 does 

not authorize a final judgment, but directs further proceedings 

before a referee or otherwise, either party may move for a new 

trial at the next term, and for that purpose may, within ten days 

after notice of the decision being filed, except thereto, and make, 

a case or exceptions as above provided in cases of an appeal. 

2. And either party desiring a review upon the evidence ap- 
pearing on the trial, either of the questions of fact or of law,, 
may, at any time within ten days after notice of the judgment 
or within such time as may be prescribed by the rules of th| 
Court, make a case or exceptions, in like manner as ujjon a trii 



OF SOUTH CAliULi.NA. ir, 

. . A. D. 1804. 

by jury, except tliat the .Imh^o, in settlinjr the oaso, must briefly * v 

specify the facts found by him unci his conchisions of hiw. 

If exception has been taken to a decision on a matter of law ariHinR on the 
tniU, no furtlior exception need be made thereto as required by this Secti<.ii - 
Culrnuin v. Heller, i:! S. C, 4'Jl. 

In apprtiliii- from a docn^e in chancery rcndennl in vacation, it m not neces- 
sary to serve the Jud-e with a copy of the exceptions.- 6V,r//.o/,; v. Vanve 14 
!S. ('., 4oS. ' 

Matters stated only in the exceptions are not facts in the case —LiU"< v Ul- 
tlisnn, 27 S. C, L'2(>. 

Tliis Section controls on hearing of referee's report in a law case on excep- 
tions taken, and allows a review of his findings of fact as well as of law — 
Meetzc v. R. It., 23 S.C.,1 ; Griffith v. /?. Ji., 2;i S. C, 'Jo. 

Sec. 291. On ji judgment for the plaintiff upon an issue of proccwiit,^, 

law, the plaintiff may proceed in the manner ])rescribed hy 8ec- or!2su"'l!f'?aT 
tion 2G7, upon the failure of the defendant to answer, where the ^"70. xjv.. wi):j! 
summons was personally served. If judgment be for the defend- 
ant upon an issue of law, and if the taking of an account or the 
proof of any fact be necessary to enable the (\)urt to complete 
the judgment, a reference or assessment by jury may be ordered, 
as in that Section provided. 



Sec. 



CHAPTER V. 

Trial by Referees. 

Sec. 



2fl2. All Issues referable by consent. 291. Mode of trial. Effect of report. Re- 

293. When a reference may be compulso- view. 

rlly ordered. SOo. Referees, how chasen. Report 

This Chapter as to referees inoperative in Counties where there is a JVIas- 
ter. — C/ia2)))ian v. Lipacomh, lo S. C, 474. 

Section 292. All or any of the issues in the action, whctiier am issui-< re- 
of fact or of law, or both, may be referred upon the written con- s^nJl''*' •**■ "'"- 
sent of the parties ; and in such case the order, if taken in vaca- " u.^^TTTTa; 
tion, may be made by the Clerk. ^'"' * '^' 

All issues in law may be so referred.— A/cc^zr v. R. It, 2.'! S. V., 1 ; Griffith v. 
li. !{., 23 S. C, 2,5. But not except ujjon ^vritten consent.— -Sd/c v. Metmett, 
i5 S. C, 72. An order for reference, by consent, is sullicient.- fi7t/ Voum-il \ 
Rynn, 22 S. C, :«!) ; Martin v. Martin, 24 S. C, 44(i ; Valvn-t v. .Vf<7)../.s-, 2(5 S. 
J., 304 ; Trenholm v. Morgan, 28 S. C, 208. 

^ec. 293. Where the parties do not consent, the (.\)urt mav. when a rffer- 
ipon the applicaticm of either, or of its own motion, except ,':;,',';;;,,,",',",,>r uy 
vhere the investigation will require the decision of difficult ques- "'^'••"'<'- 
ions of law, direct a reference in the ft)llowing cases : 



128 CODE OF CIVIL PROCEDURE 

A. D. 1804. - 

" ^ ' 1. AVherc the trial of an issue of fact shall require the exami- 
nation of a long account on either side ; in Avhich case the re- 
feree may be directed to hear and decide the whole issue, or to 
report upon any specific question of fact involved therein ; or, 

2. Where the taking of an account shall be necessary for the 
information of the Court, before judgment, or for carrying a 
judgment or order into effect ; or, 

3. Where a question of fact, other than upon the pleadings, 
shall arise, upon motion or otherwise, in any stage of the action. 

4. The reference shall l)e made, in all Counties in which the 
office of Master has been estaljlished, to a Master ; in all other 
Counties the reference shall be made to such person or persons 
as shall be appointed as provided in Section 295. 

This Section does not impair the common law power of the Court to submit 
a case, with consent of parties, to arbitration and make the award the judg- 
ment of the Court.— Bollman v. BoUman, 6 S. C, 2(). 

The provision of this Section is permissive merely, and not mandator}-, and 
the matter of reference is addressed to the discretion of the Judge.— /ioi(?anrf 
V. Carjnn, 27 S. C, 235. While he can only refer in the specified cases, it 
must be assumed that the Judge had before him sufficient to show that the 
case did fall under one of the subdivisions.— Ferr^t.wn v. Harrison, M S. C, 
Ki'J. And in proper case reference may be ordered at same time it is reqiiired 
that other persons be made parties.— 6'u?/«ro)i v. Latimer, ;t2 S. C, 281. 

This Section, as to subdivision 1, must be con.strued to apply to such cases 
only as were not triable by jury prior to isr.s, and where an action on open ac- 
count or account stated presents no special feature of equitable cogniisance 
the parties are entitled to a JTirj' trial, even though the examination of a long 
accoimt may be involved.— Smith v. Brycr, 17 S. C, 538. i 

Where a creditor, defendant, claims priority of payment out of a fund in 
Court, through a hen on the property it represented, the case was referable 
under this Section.— .S'(((/e v. H. B., 8 S. C, 121). 

So when the defendant to an equitable action sets np a claim for damages, 
the Court may still refer the case.— Lnmar v. H. R., 10 S. C, 476 ; Bath Co. v. 
Lanyley, 2;i S. C, 145 ; Bouland v. Carinn, 27 S. C, 2;i5. 

Mode of trial; Sec. 294. The trial by a Master, or by referees, shall be con- 
eff^^ofreport^ ducted in the same manner and on similar notice as a trial by the 
r8ro,xiv.,§2'..u; Qq^^j.^- Every referee appointed pursuant to this Code of Pro- 

1884, XVIII., *^ -i.-i .1" J* 

:w; 1S80, XX., cedure shall have power to administer oaths m any proceedingi 
before him, and shall have, generally, the powers vested in i 
referee by law. Masters and referees shall have the same powei 
to gi-ant adjournments, and to allow amendments to any plead 
ings and to the summons, as the Court, upon such trial, upoi! 
the same terms and with the like effect. They shall have th\ 
same power to preserve order and punish all violations therec 
upon such trial, and to compel the attendance of witnesses be 
fore them by attachment, and to punish them as for contemp 
for non-attendance or refusal to be sworn or testify, as is poi 



204 



OF SOUTH CAROLINA. I'.^O 

A. D. :^'.>«. 
sessed by the Court. They must state the faitts found, and the ''""^v— '' 
conchisions of law, separately ; and their decision must be given, 
and may be excepted to and reviewed in like manner, and with 
like elTect, in all respects, as in cases of appeal under Section 
290 ; and they may in like manner settle a case or exceptions. 
When the reference is to report the facts, the report shall have 
the effect of a special verdict. 

Masters and referees to whom causes may be referred, whether 
to hear and decide the whole issues or to report upon any spe- 
eilic question of fact, or upon the facts generally, shall hear and 
decide any objection which may be made to the competency, 
relevancy or admissibility of any testimony which may be olfered ; 
and if, upon hearing such testimony, he shall decide the same 
inadmissible, he shall take it subject to such objection, but shall 
not incorporate it with the rest of the testimony in the body of 
his report, but shall append it separately at the end thereof ; 
and at the request of any party to a cause who may tender the 
necessary expenses incident thereto, the Master or referee may 
employ a competent stenographer to take testimony in such 
cause ; but such expenses shall not be taxed in the costs or 
included in the disbursements thereof. 

Whenever any cause shall be referred to a Master or referee 
and tcstimon}^ be taken therein, it shall be his duty to reduce the 
testimony of the witnesses to writing, and require the same to be 
read over and signed by the witness ; but this shall not be con- 
strued to prevent the use of stenographers for the purpose of 
taking testimony at such references, or to require that the testi- 
mony so taken by such stenographers shall be read over to or 
signed by such witnesses. 

When the case shall have been heard and decided upon the 
report of the Master or referee and exceptions, the decision may 
be reviewed on appeal to the Supreme Court. 

Referee has power to allow amendments. — Mason v. JDlmsnu, VA S. C, "JO. 

This Section does not authorize a Master to require a party to produci- a 
ilvpCL.— Carter v. Spencc, 24 S. C, 5.50. 

It is not mandatory, Init directory merely, as to the statement "of facts 
found and conclusions of law,"' separately. — lioUuutn v. Bitllnian, <» S. C, -.•. 

The "facts found" are the conclusions of facts drawn from the testimony. 
There should first be a clear statement of all material facts, and thcTi should 
follow the conclusions of the referee. — Moore v. Johnson, 7 S. C, oO'.i. 

An exception to the report cannot by its own statement supply such defect 
of facts.— 77/o»ijj.son V. Thonijtson, S. C, -'70. Nor can the Jud^e hearinjj 
the casi' upt)n the report call for a paper to be protluced which was not before 
the referee. — r;r(^)i v. drijjin, 20 S. V., -ISO. 

It is the duty of the Judge to determine by his own judgment all the issues 



130 CODE OF CIVIL PROCEDURE 

A. D. IS'JJ. ~ 

^■^ -r"^ in an equity cause ; and the report of the referee merely aids the Judge in 
reaching,' his judgment. — Thorpe v. Thorpe^ 12 S. C, 154. 

While the report of the rcsferee upon an issue of fact " shall have the eflfect 
of a special verdict," as such a verdict it may be set aside, for any cauBe for 
which verdicts may be set aside. — Fu-lils v. Ffurst, 20 S. C, 282. But in equity 
his findings of fact are only to assist the Court and for its information, and 
may be disregarded by the Court. — Ih. 

When there is a consent order of reference, of all is-sues, in a law case, the 
Judge has power to review the findings of fact as well as of law, made by the 
referee, when the report, the testimony and exceptions are all before him.— 
Meefze v. R. R., 23 S. C, 1 ; Griffith v. R. R., 23 S. C, 25 ; Calvert v. Nickles, 
2<iS. C.,305. 

A party can be heard in opposition to the confirmation of the report of the 
referee, without having excepted thereto, when he has not been served with a 
copy or notice thereof ten days before Court. — Ex Parte Fort, 36 S. C, 20. 

Referees, how Sec. 295. In all cases of reference to referees, the parties to 

CllOS6D * TBDOrt 

1870, XIV., §e<)ri the issues in the action, except when the defendant is an infant 
or an absentee, may agree in writing upon a person or persons, 
not exceeding three, and a reference shall be ordered to him or 
them, and to no other person or persons. And if such parties 
do not agree, the Court shall appoint one or more referees, not 
more than three, who shall be free from exception. And no per- 
son shall be appointed referee to whom all parties in the action 
shall object. And no Judge or Justice of any Court shall sit as 
referee in any action pending in the Court of which he is Judge 
or Justice, and not already referred, unless the parties otherwise 
stipulate. The referee or referees shall make and deliver a report 
within sixty da3's from the time the action shall be finally sub- 
mitted ; and in default thereof, and before the report is deliv- 
ered, either party may serve notice upon the opposite party that 
he elects to end the reference ; and tliereupon the action shall 
proceed as though no reference had been ordered, and the 
referees shall not, in such case, be entitled any fees. 



OF SOUTH CAROLINA. 



CHAPTER VI. 
Manner of Entering Judgment. 




Skc. 



Sec. 



290. JiKlprmontmnybpforornpalnstanyof 209. Ju.iffmont In action for ovov.-o" of 

the partl.'s to the action : nmv tfnint prrsonal proporty ; how (Jln-«-t.-<I 

defondant aairnmllvi' n.ll..f. I'oni- .300. Clerk to keep " Ab«tract of Judg- 

plnint may be dismissed for noplcot to menta." 

prosecute the action. Jndiarinent \ 801. Judgment to be entered In Alwtract 

asralnst married women. I 802. Judgment roll. Transcript of Judg- 

297. The relief to be awarded to the plain- ment filed In any other County; 

^^^- i effect of. 

29S. Rates of damages where damages are I 

recoverable. I 

Section 296. l. Judgment maybe given for or against one judgment may 
or more of several plaintiffs, and for or against one or more of ^y o/'thT^! 
several defendants ; and it may determine the ultimate rights of 11'^.'*' "!'' "'': 

... 1 • T -1 ° lion , ma> grant 

tlie parties on each side, as between themselves. defendant af- 

llnnatlve relief; 

Harrison V. Manufachiring Co., 10 S. C, 278. complaint may 

In action against .survivor of joint obligors and the executor of deceased one, neglwt'to^p^o^'- 

tbc judgment should be separate.— r*i/»»itVr v. Thomjison, 10 S. C, WA. f-ute the action ; 

A separate judgment may be rendered in favor of one defendant against the agalnsf nTairleU 

plaintiff, upon a counter-claim.— P^i/c?- v. Parker, 10 S C 4CA women. 

. '' ' ISTO, XIV.. 8298. 

2. And it may grant to the defendant any affirmative relief to 
which he may be entitled. 

3. In an action against several defendants, the Court may, in 
its discretion, render judgment against one or more of them, 
leaving the action to proceed against the others, whenever a 
several judgment may be jaroper. 

4. The Court may also dismiss, the complaint with costs in 
favor of one or more defendants, in case of unreasonable neglect 
on the part of the plaintiff to serve the summons on other 
defendants, or to proceed in the cause against the defendant or 
defendants served. 

Mere failure by plaintiff to proceed with his case after service of summons 
and docketing does not have the effect, under this Section, of putting the 
plaintiff out of Court.— //or/ooc/ v. liiley, '.Jl S. C, 143. 

In an action brought by or against a married woman, judgment 
may be given against her as well for costs as for damages, or both 
for such costs and for such damages, in the same manner as 
against other persons, to be levied and collected of her separate 
estate, and not otherwise. 

The provision for the levy and collection out of her separate estate i.s merely 
directorj-.— C7iHA-.sro/c.s- v. Hull, Ih S. C, COL'. Only intended to indicate what 
property of the woman could be made liable.— //a &<'HiV/if v. h\ui[s, -M S. C, 
•KJl. 



132 CODE OF CIVIL PROCEDURE 

A. D. 1894. ■ ■ 

"^ ^ ' Sec. 297. I'lie relief granted to the plaintiff, if there ho no 

iK' iiwar.u-.! to jinswiT, canuot exceed that which he shall havedeinaiulcd in his 

j/n's'-"!)'.!. " ct^'iiplaint ; but in any other case the Court may grant him any 

relief consistent with the case made by the complaint, and 

embraced within the issue. 

Relief not limited bj' prayer of complaint, if answer is flkd and the relief is 
consistent with the cjxse made. — Christojthrr v. Chrintiiphfr. ]s S. C, WX). 

Where complaint states notes and credits and demands jnd(2fment for a cer- 
tain sum, and answer admitted the allegation, it was error in the Judge to 
reduce the credits and give judgment for a larger sum ; thLs was not consis- 
tent with the case made.— Straub v. Screven, 19 S. C, 445. 

Rates of dam- Sec. 298. AVheuever damages are recoveral)le, the plaintiff 
daiD^^arere- may claim and recover, if he show himself entitled thereto, any 
covei^bie^^_ — ^^^^ ^^ damages which he might have heretofore recovered for 
the same cause of action. 

This Section only remands such cases to the former practice, and in actions 
for damages not punitive the recovery is limited to the direct pecuniary loss. — 
Sullivan v. SuUivan, 20 S. C, SOU. 

Judgment In Sec. 299. In any action to recover the possession of personal 
coveryoV pre- property, judgment for the plaintiff may be for the possession. 
^/^^^8 a)!*^*^ or for the recovery of possession, or the value thereof, in case a 
delivery cannot be had, and of damages for the detention. If 
the property have been delivered to the plaintiff, and the defend- 
ant claim a return thereof, judgment for the defendant may 
be for a return of the property, or the value thereof, in case a 
return cannot be had, and damages for taking and withholding 
the same. 

This Section does not apply to action for general damages.— Jo/j/in v. Car- 
rier, 11 S. C, 327 ; Rickey v. DuPre, 20 S. C. «. 

Judgment may be given for value of the property, though only its recovery 
and damages be demanded. — Joplin v. Carrier, 11 S. C, 327. 

In action for bale of cotton, which defendant had sold, or for the value 
thereof, a verdict for stated amount is not invalid, the plaintiff so electing. — 
liichey v. DuPre, 20 S. C, «. 

In such action, where plaintiff takes possession of the property and the ver- 
dict gives him a portion of it with damages, and the remainder to the defend- 
ant with damages, each party is entitled to enter judgment.— 6Yoh«'?/ v. lUiih>i. 
2S S. C, 15(;. 

Such judgment must be in the alternative for the recovery of the property 
or its value.— r;io»)7Json v. Lee, 19 S. C, 489; Bobbins v. Slattery, 30 S. C, 
328, Note. 

Judgment on complaint and verdict that fail to identify the articles i- 
invalid.— A-ff-s-Tji v. Miller, 18 S. C, :W1 ; Lorkhnrt v. Little, 30 S. C, 326. 

Clerk to keep Scc. 300. The Clerk shall keep, among the records of the 
Judgment" ° Court, a book for the entry of judgments, to be called the 
isj!., XL, 103788 '^ Abstract of Judgments." 



OF SOUTU CAROLINA. 1:53 

A. D. IMM, 

Sec 301 '" this hnok sli.ill 1)0 entered eadi nise wlicnin "^-"^/-^^ 

• 1 ^ 1 • 111- 1 -J 1.-1.- Jucljoni-nt to 

lu(l<niiont may be sitjiicd. mcliKiin}' ouch case in dower, partition, he «nu'n-«i m 

and escheat, after jud,<fiiu'nt or lina! order, with separate columns, ^,^ 

showiui; nuniher ol" enrollment, names of i)arlies, cause of action, 
attorney, date of jud<jjmcnt, amount of judgment, time of bear- 
ing interest, how judgment obtained, costs, (separating attorney, 
Clerk. SiierilT, witnesses, and total,) kind of execution, date of 
issuing. Sheriff's return, when renewed, and satisfaction, to- 
gether with an index, by the names of defendants, and a cross 
index l»y the names of plaintiffs, each alphabetically arranged 
and kept in se])arate volumes, with the number of enrollment of 
judgment. 

Sec 302 Unless the party or liis attorney shall furnish a Jmitrmont mii : 

, , , r ,. , , . . T , transorlpl of 

judgment roll, the Clerk, immediately after entering judgment, ju.iffin«nt nieu 
shall attach together and iile the following papers, which shall county; eff.-ct of 
constitutre the judgment roll : ^'*^"' **^'-' ***^- 

1. In case the complaint be not answered by any defendant, 
the summons and complaint, or copies thereof, proof of service, 
and that no answer has been received, the report, if any, and a 
copy of the judgment. 

2. In all other cases, the summons, pleadings, or copies thereof, 
and a copy of the judgment, with any verdict or report, the offer 
of the defendant, exceptions, case, and all orders and papers in 
any way involving the merits and necessarily affecting the jndg- 
ment. 

A transcript of a final judgment, directing, in whole or in 
part, the payment of money, may be docketed with the Clerk of 
the Court of Common Pleas in any other County, and when so 
docketed shall have the same force and effect as a judgment of 
that Court. Such transcript shall set out the names of the par- 
ties plaintiff or defendant, the attorneys of record, the date and 
amount of the judgment, the time from which interest is to be 
computed, and the amount of costs. 

"Case"' required as jiart of jiul^'inent roll, istlu'ca.sc prepared ou applica- 
tion for new trial, and not case for appeal.— 2"; ibhle v. Poorc, 'JHS. C, ")ru">. 

Final judgment applies to the Circuit Com-t.— 6"«r»i*o)« v. J)ou<jhiiti/. is S. 
C, 4S(5. 

A tran.script of a fiiuil jiulf^nnent i.s a cojiy of the entry in the jud)nni>nt 
book.— //for/.swi V. Mitnufdclurinij Cii., 10 S. C, 278. But is good although 
certified to he from the docket of judgments instead of the judgment hook, 
and without the Clerk's name, but with his .seal.— 7fc. 



134 



CODE OF CIVIL PROCEDURE 



A. D. 1894. 



TITLE IX. 

OF THE EXECUTION OF THE JUDGMENT IN CIVIL 

ACTIONS. 



Chapter I. — The E.rccutio7i. 

CnAPTEE II. — Proceedings SupiiUmeutary to the Execution. 



CHAPTER L 

The Execution. 



Sec. 

303. Execution within t«n years of 
course. 

3(U. Judgments, hov.- enforced. 

30.5. The different kinds of execution. 

806. To what Counties execution may be 
Issued ; sales, by whom made. Exe- 
cution against a married woman. 



Sec. 
307. 



309. 



310. 
311. 



Execution against the person, In 

what cases. 

Forms of execution. 

Final Judgments a lien on real estate 

for ten years. 

Personal property bound only by levy. 

Actions on judgments after lapse ot 

twenty years. 



Execution Scctioil 303. Writs of execution for the enforcement of 
of course^^^'^'^ .ii^iclgnieuts shiill conform to this Title; and the party in whose 
i30b^-~iBr3^xv' ^^"^o^ judgment has been heretofore or shall hereafter be given, 
»K ^Mi' ^*^' ^^^' ^^ '^''^^^ ^^ ^^^^ death, his personal representatives duly ap- 
pointed, may, at any time within ten years after the entry of 
judgment, proceed to enforce the same, as prescribed by this 
Title. 

This Section is expressly retrospective and applies to executions on previous 
as well as subsequent judgments.— Gorrm v. Gamin, S4 S. C, 388. 

Execution may issue at any time within the ten years without leave ; and 
at any time after ten years ■with leave ; and if then issued without leave, 
the execution is not void, but only voidable for irregularity. — Laurence v. 
Grambling, 13 S. C, 120. Ckinsent utII cure want of leave, and it may be pre- 
sumed from payment on the execution or failure to move to set it side. — lb. 



Judgments, 
how enforced. 
lb., §808. 



Sec. 304. Where a judgment requires the payment of money, 
or the delivery of real or personal property, the same may be 
enforced, in those respects, by execution, as provided in this 
Title. AVhere it requires the performance of any other act, a 
certified copy of the judgment may be served upon the party 
against whom it is given, or the person or officer who is required 
thereby or by law to obey the same, and his obedience thereto 
enforced. If he refuse, he may be punished by the Court as for 
a contempt. 

Judgment of foreclosure and sale of mortgaged premises is not a judgment 
for delivery of real property to be enforced by execution alone, but may be en- 



OF SOUTH CAROLINA. 135 

A. U. 1H!»I. 
forced by attiichment. — Trrnhnlni v. M'lV.snd, i:; S. C, 171 ; LcContr v. Iririn, '^•— ,- — — ' 
'2:i S. C, lot; ; K.V J'uHr Winldn; :il H. C, 171. 

Sec. 305. 'I'licrc shall be three kinds of c'xecuti(jn : one xinf tiiiTfrcnt 
against the property of the judgment debtor ; another against uon. " "'^"^ 
his person ; and the third for tlie delivery of the ])08seK8ion of *'^°' ^^^•' •'•^• 
real or jiersonul projierty. or such delivery with damages for 
Avithholding the same. They shall be deemed the process of tlie 
Court. 

Sec. 306. When the execution is against the property of the Towiiutcoun- 
judgment debtor, it may be issued to the Sheriff of any County l,l,ry%M*iIs"iMr; 
wiiere judgment is docketed. When it requires the delivery ^y";^,;.*'^;^^^^'™ 
of real or personal property, it must be issued to the Sheriff J,',',',"r,,^,f"^|.°^J^„n 
of the County where the property, or some part thereof, is situ- ih', saio; isr2, 
ated. Executions may be issued at the same time to different xvi'., -m tos- 

-' 1885, XIX., 7. 

Counties. 

Property adjudged to be sold must be sold in the County where 
it lies, except as hereinafter otherwise i^rovided, and in the fol- 
lowing manner : 

All sales of real estate under the orders of the Probate Court 
shall be made by the Judge of Probate ; all sales under the order 
of the Court where the title is to be made by the Clerk of the 
Circuit Court shall be made by the Clerk. In those Counties 
Avhere the office of Master exists, the Master shall make all sales 
ordered by the Court in granting equitable relief, conformably to 
the practice of the Circuit Court, or to the practice of the Courts 
of Equit}' of this State before said Courts were abolished. And 
whenever real estate is adjudged to be sold by a Master, such sale 
]iiay take place In'' consent of the j^arties to the cause or their 
attorneys, or when infants are parties by the consent of their 
guardians ad litem, or their attorneys, in any County which the 
Court may direct. All other judicial sales shall be made by the 
Sheriffs, as now provided by law. 

Upon such sale being made, and the terms complied with, the 
officer making the same must execute a conveyance to the pur- 
chaser, which conveyance shall be etTectual to pass the rights and 
interests of the parties adjudged to be sold. 

An execution may issue against a married woman, and it shall 
direct the levy and collection of the amount of the judgment 
against her from her separate property, and not otherwise. 

A sale by referee is invalid, but binds defendant until notice of ai)]>eal from 
the decree, and a purchaser at the sale will not be affected by appeal after- 
wards tiiVicn. —Arnistn»)ii v. n\nn})hir}js, "> S. C, 1~S. 

Execution may issiie upon a transcript of the judgment filed in a new County, 



13G CODE OF CIVIL PROCEDURE 

A. D. IfiM. 

^~- — y ' against lands embraced in the new County.— <7arrjn v. Gdn-in, :i4 S. C, .'JSS. 

Where Sheriff sells land under execution on a judgment not rendered when 
the land wius sulci by defendant, the punhaser will take good tith;. against the 
vendee, when there is in Sheriff s office an execution on an older judgment.— 
lb. 

In Counties where there is no Ma.sttr, the Court may order a sale of fore- 
closure to be made by the Sheriff. — Chihls v. Alexander, 2'J S. C, KiU. 

The sale of Sheriff made in another County than where the land lies gives 
indisputable title to purchaser, as to defendant and his vendee, where the 
defendant failed, when served with summons, to show cause against renewal 
of the execution.— F/T«'r v. Tupper, 21 S. C, 7"). So, sale by Sheriff under 
renewal of execution more than twentj' years old where defendant failed to 
object, when summoned to show cause against the renewal.— JcicAson v. 
Patrick, 10 S. C. 1!»7 ; McXair v. Ingraham, 'Jl S. C, 70. 

This provision as to execution against a married woman is merely directory, 
and not necessarj' to its validity. — Clinhscnles v. Hall, I.t S. C, fX)2. 

Cited to show that the limitation upon the right of a married woman to con- 
tract was not intended to indicate what property would be liable for the 
breach thereof. — Habenicht v. Tiaiels. 24 S. C, 4(51. 

Execution Ssc. 307. If the actioji be one in which the defendant might 
son!°fn* w h*a t ^^^^*^ '^^^^ arrested, as provided in Section 200 and Section ::i02, 
cases. — _ g^Q execution against the person of the judgment debtor may be 
issued to any County within the jurisdiction of the Court, after 
the return of an execution against his property unsatisfied in 
whole or in part. But no execution shall issue against the per- 
son of a judgment debtor, unless an order of arrest has been 
served, as in this Code of Procedure provided, or unless the 
complaint contains a statement of facts showing one or more of 
the causes of arrest required by Section 200. 

Party so arrested is entitled to benefit of the Insolvent Debtors Act.— 29 S. 
C, 470. 

Forms of exe- Sec. 308. The execution must be directed to the Sheriff, or 
is^^xiv^sMF Coroner when the Sheriff is a party or interested, attested by 
the Clerk, subscribed by the ])arty issuing it, or his attorney, 
and must intelligibly refer to the judgment, stating the Court, 
the County where the judgment roll or transcript is filed, the 
names of the parties, the amount of the judgment if it be for 
money, the amount actually due thereon, and the time of docket- 
ing in the County to which the execution is issued, and shall 
require the officer, substantially, as follows : 

1. If it be against tlie property of the judgment debtor, it 
shall require the officer to satisfy the judgment out of the per- 
sonal property of such debtor ; and if sufficient personal property 
cannot be found, out of the real property belonging to him. 

2. If it be against real or personal property in the hands of 
personal rejiresentatives, heirs, devisees, legatees, tenants of real 



OF SOUTH CAROLINA. 




])n)l)orty, or trustees, it sliu!l require the oflicer to siitisfy tlie 
jii(l;;iiieiit out of sueli property. 

'.I. W it be against tlie i)ersoii of the judgment debtor, it shall 
rtMpiire the officer to arrest such debtor and commit liini to the 
jail of the County until he shall pay the judgment or be dis- 
charged aecording to law. 

4. If it be for the delivery of Die possession of real or personal 
property, it shall require the ollicer to deliver the possession of 
the same, particularly describing it, to the party entitled thereto, 
and may, at the same time, require the officer to satisfy any costs, 
damages, or rents or profits recovered by the same judgment, out 
of the personal property of the party against whom it was ren- 
dered, and the value of the property for which the judgment 
was recovered to be specified therein ; if a delivery thereof can- 
not be had, and if sufficient personal property cannot be found, 
then out of the real property belonging to him, and shall, in that 
respect, be deemed an execution against property. 

Sec. 309. 1- A final judgment recovered in any Court of Final judg- 
record in this State sul)sequent to the :i5th day of Xovember, real estate" for 
A. D. 1873, shall constitute a lien upon the real estate of the -7")^*^f:™;v isr^ 
judgment debtor in the County where the same is entered for a x\''i I'T' 'tj^' 
period of ten years from the date of entry thereof. And a tran- ^*^< ^'^- ■■^•'• 
script of such judgment may be filed in the office of the Clerk 
of the Court of Common Pleas of any other County, and when 
so filed shall constitute a lien on the real property of the judg- 
ment debtor in that County from the date of the filing thereof, 
witli the same force and effect as the original judgment, for the 
])eri()d of ten years from the entry of said original judgment. 

3. A final judgment may be revived at any time within the 
period of ten years from the date of the original entry thereof 
by the service of a summons upon the judgment debtor, as ])ro- 
vided by law, or if the judgment debtor be dead, upon his heirs, 
executors or administrators, or if he be removed out of the State, 
by publication of such summons in the manner provided in Sec- 
tion 150 for publication of summons on complaint to be filed, to 
show cause, if any he or they may have, why such judgment 
should not be revived ; and if no good cause be shown tt) th.(.' 
contrary it shall be decreed that such judgment is revived. And 
such judgment shall thereupon constitute a lien upon the real 
estate of the judgment debtor, then owned or thereafter to bo 
acquired by him, in the County where the judgment is entered, 
for a period ten years from the entry of such decree ; but such 



138 CODE OP CIVIL PROCEDURE 

A. D. isnj. 

""" ^' ' lion slmll not revert back to the date of the original entry of such 
jud^aiH'nt. And a transcript of said summons and decree may 
be tiled in the ofKce of the CltM-k of the Court of any other 
County, and when so filed the judgment shall have like liens in 
that County from the date of filing of such transcript and for a 
like period as in the County in which the judgment is revived 
as aforesaid : Provided, That a judgment shall not in any case 
constitute a lien on any property of the judgment debtor in any 
County after tlie lapse of twenty years from tho date of tlie origi- 
nal entry of the judgment. 

3. This Section shall not be construed so as to make final 
judgments in any case a lien on the real property of the judg- 
ment debtor exemjit from attachment, levy and sale by the Con- 
stitution. 

4. Nothing herein contained shall be construed to affect the 
lien of judgments or executions entered prior to the 1st day of 
March, A. D. 1870. 

The lien allowed to decrees and judgments is no part of the remedy of en- 
forcement, and an Act which prevented such lien in absence of levy did not 
impau- the obligation of the contract and was valid. — Moore v. Holland, ](! S. 
C, 15. So is an Act that limits the duration of such retrospectively. — Ilcnrij 
V. Hem-y, 31 S. C, 1. 

The Section providing no time within which the summons to re\ive a judg- 
ment and give it a lien, the Com'ts cannot fix any. — Ahbrook v. Wtitts, I'.t S. 
C, 539. Any legal objection in response to the summons may be considered 
by the Court as to whether it is sufficient. — lb. 

Executions having an unexpired lien before the Act of 2.5th November, 187:3, 
then and thereunder acquired an extended lien for t«n years from date the 
lien attached.— -4r>ioW v. McKcUar, !) S. C, 335 ; Adiches v. Lownj, I'JS. C, Sl7. 

A judgment so revived continues to have a lien from its original entry and 
ranks as of that date.— i=:.r Parte ^y^fte Bros., :« S. C, 22t). Subdivision 2 
does not apply to judgments previously obtiiined. — King v. Belcher, 30 S. C, 
381. The judgment may be revived, although signed by one who styled him- 
self "deputy clerk,"' but was never regularly appointed.— 7ft. 

The proceeding to revive is not by action, but by summons to show cause ; 
and when defendant fails to do so at time notified, the Court may, in its dis- 
cretion, give judgment by default or allow him to answer. — Carroll v. .S'('//i- 
A-m.s, 14S. C, 223. 

Where such summons to revive judgment before the Code is served Avithin 
twenty yeai-s and defendant consents to revival and acknowUnlgcs debt to be 
due, the presumption of payment ceases to run, and upon revival the lien is 
continued for twenty years longer. — Adam.'s v. Jlichard.son, 32 S. C, l-iH , 
Wood V. MUUmj, 32 S.'c, 378 ; LeUner v. Metz, 32 S. C, :iS:i. 

There is no lien under a decree in etiuity as a judgment until it is properly 
entered in the abstract of judgments. — Held v. McGon-an, 2S S. C., 74. 

A judgment is not a lieu on the homestead of debtor, either in his posses- 
sion or that of vendee. — Cao// (7/ v. Fnulrr, 24 S. C, 424 ; Ketchin v. McCar- 
ley, 20 S. C, 1. Or even in lands impartitioned.- A'ajice v. Hill, 20 S. C, 227. 



OF SOC'I'll CAI.'oMNA. i:i:) 

A. I>. IV'I. 

Sec. 310. I- I'iXi'<'iili()iis niiiy issue ii|iiiii final jndi^riu'iits or ' 

I i. i- • L\ • L ' r .11 .-.i ••! I'<TH<>nill pnip- 

ilci-rees at any time witlim ten years from the ilaic ol tlic un^inal c-rty iH.un.i .miy 
entry tliereof, or within ten years from the (hite <»r any revival \y^^\yi 41,1,. 
of tlie same, and slmll have active enerj^y (lurin<,' said periods '**''^' *'^-' ^"• 
respectively withoni any renewal or renewals thereof, and thus 
whether any return or returns may (»r may not have heen made 
during such ])eriod8 respectively in said executiojis : Praridcd, 
The execution shall not issue or he renewed in any case after the 
lapse of twenty years from tiie date of orif^inal entry of the judj(- 
nieiit. Executions shall not bind the personal property of the 
del)tor, hut personal property shall oJily he bound by aetual 
attachment or levy thereon foi- the ])eriod of four months from 
the date of such levy. \\ hen judgment shall have been rendered 
in a Court of a Trial .lustice. oi' other infcrif>r Court, and dock- 
eted in the ottiee of the Clerk of the Circuit Court, the ap])lica- 
tion for leave to issue execution must be to the Circuit Court of 
the County where the jud,<fmcut was rendered. 

2. The Sheriff. Coroner, oi- other olbcer with whom final pro- 
cess as aforesaid shall be lodged, shall, at each regular term of 
the Court from which the said execution or process was sued out, 
during the contiiniance of its active energy, until full execution 
thereof be returned, make a return to the office of the Clerk of 
the Court of Common Pleas of his actings and doing thereunder. 
If he shall have fully executed, he shall retuni the process, with 
the manner of its execution ; if he shall have partially executed, 
he shall return, on oath, to the Clerk, a statement in writing, 
under his hand, of such partial execution, with the reason of his 
failure as to the remainder ; if he shall have wholly failed to 
make execution, he shall return, on oath, a statement in writing, 
under his hand, of his failure, with the reasons ; and in any 
event, on the first day of the term at which the active energy of 
the process shall cease as herein provided, he shall return the 
process, if the same has not been before returned sis fully exe- 
cuted ; and the return of the officer made as aforesaid shall, for all 
purposes, have the same legal effect as if the said process hail 
been made returnable to the term succeeding its first lodgment 
and renewed after each sul)sef|U('nt regular term. For failure or 
neglect to make any of the returns above mentioned, or for any 
false return, the Sheriff, or other officer as aforesaid, shall be 
subject to rule, attachment, action, penalty, and all other conse- 
quences provided by law for neglect of duty by executive or judi- 
cial officers. 

< ited iu Kohn v. Meyer, l!i S. (*., I'.M). 
10 



140 CODE OF CIVIL PROCEDURE 

A. D. IH'.ll. "~ ~ 

*•— v^~~^ This Si'ition has no ri'troactive effect ; applies only to execatioiu i^ued aft«r 
Hcloption of Code, and does not divest lien of execution of judj^ment obtained 
before that time. — \\'arn-n v. Jotu-s, '.t S. C, 2S.S. Such lien continues afttjr 
active enerjjy of execution has expired and attaches to personal proi)erty 
acquired after adoption of the Ckxle. — CVf /•;•(>/• v. Thoiupson, 11 S. C, 1\K 
Such execution may be naiewcd by consent.— //j. Although the Sheriff fails 
to make such return, it is no reason why he should not be competent t(j prove 
that endorsements on exec;utions were made by him and that be had not sold 
the property levied on. —Hunk v. Kinard, :iS S. C, 101. 

Actions on Ssc. 311. Notliiiig ill tlio t\v'(j preceding Sections contained 
iapsi"c)f"tw'enty sliull 1)0 construed to prevent an action upon a judgment after 
i^(«ir\viii ais) ^^^^ lapse of twenty years from the date of the original entry 
thereof, and a recovery thereon, in case it shall be established by 
competent and sufficient evidence that .said judgment, or some 
})art thereof, remains unsatisfied and due : nor siiall be construed 
as prejudicing any action pending on :i4th of December, 1885. 

CHAPTER II. 
Proceedings Supplementary to the Execution. 

Sec. sec. 

312. Order for discovery of property ; ex- i .317. Whiit property may be ordered to be 
amination of jiidfrment debtor, &c. applied to the execution. 

3i:i Any debtor to execution debtor may I 318. Judire may appoint receiver and pro- 
pay tiis debt to SherilT. [ hibit lnin.sfer of property. 

314. Examination of debtors of judgment 319. Proceedinfrs upon claim of anotlier 
debtor, or of those having property party to property, or on denial of in- 
belonging to him. I debtedncss to judgment debtor. 

31.5. Witne.sses required to testify. i 330. Reference by Judge. 

310. Compelling party or witue-sses to at- 321. Costs of proceedings. 

tend. 322. Disobedience of order, how pimlshed. 

Order for dis- Sectioil 312. 1- AVhen an execution against property of the 
erty^rexamina- judgment debtor, or any one of several debtors in the same jndg- 
inent'debt<Ir*&c' ^i^cut, i.ssued to the Sheriff of the County where he resides or 
1870, XIV., §318. has a place of business, or, if he do not reside in the State, to the 
Sheriff of the County where a judgment roll, or a transcrij)! of a 
Justice's judgment for twenty-live dollars or upwards, exclusive 
of costs, is filed, is returned unsatisfied, in whole or in part, the 
judgment creditor, at any time after such return made, is enti- 
tled to an order from a .ludge of the Circuit Court, requiring 
such judgment debtor to appear and answer concerning his prop- 
erty before such Judge, at a time and phice specified in the order,j 
within the County to which the execution was i.ssued. 

2. After the issuing of an execution against property, an< 
upon proof by affidavit of a party, or otherwise, to the satisfa 
tion of the Court, or a Judge thereof, that any judgment debt«^ 



OF SOTTII CAROLINA. U 



li;is |in»|)('rtv wliicli lie unjustly refuses to :i|>|»ly towards the sat- 
istactioii of tlic jud^iiu'iit, sucli Court or .Iu(l<;e may, by iin 
ordei', ri'((uii'e the judf^nu'iil debtor to appear at a sjieeilied time 
and plaee to answer conceniini^ the same ; and such |)rocoeding8 
may theicupon he liad for the application of the property of the 
juduniient di'htor towards {he satisfaction of the jud^^nnent as are 
pi-ovidcMJ upon the return of an execution. 

;3. On an examination under this Section, either party may 
examine witnesses in Ids hehalf, and tlie judgment debtor may 
be examined in the same manner as a witness. 

4. Instead of the order requiring the attendance of the judg- 
ment debtor, tlie .Judge may, upon proof, by atlichivit or other- 
wise, to his satisfaction, tiiat there is danger of the debtor's 
leaving the State or concealing himself, and that there is reason 
to believe he has property which he unjustly refuses to apply to 
such judgment, issue a warrant requiring the Sheriff of any 
County where such debtor may be to arrest him and bring him 
before such Judge. Upon being brought before the Judge, he 
may be examined on oath, and, if it then appears that there is 
danger of the debtor's leaving the State, and that he has prop- 
erty which he has unjustly refuvsed to apply to such judgment, 
ordered to enter into an undertaking, witii one or more sureties, 
that lie will, from time to time, attend before the Judge, as he 
shall direct, and that he will not, during the pendency of the 
})roceedings, dispose of any i)ortion of his i)r(»i)erty not exem})t 
from execution. In default of entering into such undertaking, 
he may be committed to prison by warrant of the Judge, as for 
a contempt. 

5. No person shall, on exaniiiuition, pursuant to this ('ha|)ter, 
be excused from answering any rpiestion on tlu' ground that his 
examination will tend to convict him of the commission of a 
fraud ; but his answer shall not l)e used as evidence against him 
in any criminal proceeding or prosecution. Nor shall he bo 
excused from answering any (juestion on the ground that he lias, 
before the examination, executed any conveyance, assignment or 
transfer of his property for any purpose ; but his answer shall 
not be used as evidence against him in any criminal proceeding 
or |)rosecution. 

Every judf^mont creditor who can miiive the reiiuisiti' shovvin^ is entitled 
tt) institute sn])pleinentarv i)roe(H'dinf;s.— Xyo-A-.s v. /'arj.s-, 'i."> S. C, :vSl. And 
to have examination of <lel)ti>r even after apiJuintnient of receiver. — //'. 

Tlie remedy given by tliis Seetion <4innot be taken by way of defense to nn 
action ; it is a summary remedy, bii.si'd directly on tlu' jnd^^mont and supple- 
mentary to the prior proceedings.— W'ylie v. Lyle, 7 S. C, '2(W. 



142 CODE OF CIVIL PKOCEUUUE 

A. D. isaj. 



*•— ^^~^~^^^ Th«» judfiraent debtor has the rinht to have examination c-on(luct«'<l in hLs 
own Vonnty. — linn k v. Xitrl/irop, I'.t S. (\, 47.J. But he may waive this right 
by submitting his ow^n writt4*n stateTnent. — /'». 

It is no ground for dLsmissing the ijnx-eeding that the copy -order to appear 
lx»fore referee, served on the defendant, wa« without seal of Court to Clerk's 
certitieate.— />i7/in(/ v. Fosfrr. '21 S. ('., :C>4. 

Uix>n proper profccnling hereunder the Court may order money of defend- 
ant, in its hands, to l)e applietl to execution again.st him returned unsatisfied. — 
McDfinirl v. Stolcps, I'.t S. C, (». 

Although apjilication for apjwintment of a receiver was made under sul)- 
di\ision 1, the ai)iM)intment miglit be made under sulnliNTsion 'J, if the factA 
justilietl it, although no execution luwl issued. — '^/rcrn v. lionkhnrt, I!» S. C, 

When defendant debtor, residing in another County, appears in the Court 
of another Count}", where the judgment was rendered, and, without objec- 
tion, was examined, and a receiver was appointed, he waives hLs right to ex- 
amination in his own County and to object to appointment of receiver.— / 6. 

Any debtor to Sgc. 313. After the issuing of execution against property. 
or^"ay^pay^his ^^^J ptTson indebted to the judgment debtor may pay to the 
debt to shenir. Sheriff the amount of his debt, or so much thereof as shall be 

1870, XIV., 8319. . 

necessary to satisfy the execution ; and the Sheriff^s receipt .shall 

be a sufficient discharge for the amount so paid. 

Such pajTnent, with instructions to apply to a junior execution against 
creditor which had lost its active energy, was a valid pajTnent and discharged 
the debtor therefor. — Isbell v. Dunlap, 17 S.C., .581. 

Examination of Sec. 314. After the issuing or return of an execution again.st 
ment"debtor, or property of the judgment debtor, or of any one of several debtors 
prope^t *"°e^ in the same judgment, and upon an affidavit that any person or 
°jb°^.320 " corporation has property of such judgment debtor, oris indebted 
to him in an amount exceeding ten dollars, the Judge may, by 
an order, require such person or corporation, or any officer or 
member thereof, to apjiear at a specified time and place and 
answer concerning the same. The Judge may also, in his discre- 
tion, require notice of such proceeding to be given to any party 
to the action, in such manner as may seem to him proper. 

The proceedings mentioned in this .Section, and in Section '.W'i. 
may be taken upon the return of an execution unsatisfied, issued 
upon a judgment recovered in an action against joint debtors, in 
which some of the defendants have not been .served with the 
summons by which said action was commenced, so far as relates to 
the joint property of such debtors ; and all actions by creditors 
to obtain satisfaction of judgments out of the property of joint 
debtors are maintainable in the like manner and to the like effect. 
These provisions shall apply to all proceedings and actions nnw 
pending, and not actually terminated by any final judgment or 
decree. 



OF SOC'I'II CAI.'oLINA. 1 }:{ 

A.I). IK-Il. 

Sec. 315. ^\ itiicsscs limy l)i' ivcjiiircd to apiti-iir ami U'.sLifv on "" ■ 
aiiy procc'i'diii^s undci- I Ins (JIuipter, in the saini' manner as upon «|iiir.-<i i<i u-«ufy 
tlu' trial of ail is.^iu'. //-., «:j'ji. 

Sec. 316. '•'Ill' l>iH''y •"■ witness may Itr rc(|iiirci| to attend (•..inpciiiinc 
licl'orc the Judge, or before a referee a|)|)oiiite(| \t\ the Court or n"^Hf.M touru?n«l 
.Judge. If l)eforc a referee, (lie e.xaminatioii shall he taken hv /''•.»*"• 
the referee and eertilied to the .Judge. All e.xamination.s and 
answers before a Judge or referee, under this ('hapter, shall be 
on oath, exoe|)t that when a corjioratioii answers the answer shall 
be on the oath of an ollieer thereof. 

Where the same referee is apjwinted in separate cases of supplementary pro- 
ceedinf,'s by two creditors against the siime defendant, the two cases may be 
heard toj^ether. — Kmnesdw Mills Co. v. Walkpt; I'.t S. C, 1()4. 

A referee, no matter how limited his power, must sometimes uecessjirily 
decide questions in makini;; the examination. — //). 

A Circuit Jud{,'e may pass the final order in such proceedings at his cham- 
bers in a ( "ounty other tlian that in which the defendant resides, the exami- 
inatiou having been held in his County. — lb. 

Sec. 317. The Judge may order any property of the judg- wimt prop-Tty 
ment debtor, not exempt from execution, in the hands either of t"i"be appUfdTo 
himself or any other person, or due to the judgment debtor, to "'^ f^^'g ."ij'" 
be ap])lied towards the satisfaction of the judgment ; except that 
the earnings of the debtor for his personal services at any time 
within sixty days next preceding the order cannot be so applied 
when it is made to appear, by the debtor's affidavit or otherwise, 
that such earnings are necessary for the use of a family supported 
wholly or })artly by his labor. 

After retuni of execution unsatisfied, the Court may, upon hearing, order 
defendant's property in its hands to be so applied. — MvUanirl v. Stokfn, 19 
S. ('., <)0 ; liiink V. North rop, 1!) S. C, 4T;j. Or money due the defendant to be 
so applied.— /I'/fof/c.s V. Casci/, 20 S. C, 4'.)1. 

But cannot require debtor's sureties to give up jiroperty pledged to them as 
indemnity. — C/i('f<//i««j v. St-aivrujlit, :iO S. C, 101. Nor require inniH-ent 
lUisignee of a .iiulgment, who bought after order to show cause and enjoining 
ajisignmcnt had been pa.s.si'd but not served. — liuhi-rf.'ion v. Sei/lrr, '24 S. C., :!S7. 

The -Judge may enforce his order for such application of proi>erty by attach- 
ment for contempt. — A.V/nic.s(nc Co. v. Wtilkct; I'.t S. C, KM. 

But sudi attachments should not is.sue until party has had an oi)iMirtuMity 
to answer. — //). 

A fee earned in litigation ended more than sixty days befort> such miler was 
made against the defendant, was not an eaniing of the debtor's .so exempt. — 
lidiilc v. Xorthro)!, I'.t S. ('., -IT:;. 

Where there are several judgment plaintitTs the projM'rty should go to thi>s«' 

alone who move hereunder.- /i7/o./..s- v. Cusi-i/. '-iO S. ("., 4'.ll. Jucluo may ap- 

point rf<vlver 

Sec. 318. Ili^' .lii'lizc may aLso. l)y order, appoint a re('eiver "n",',Xr"„f\m>p^ 

of the iiropertv of the iudgment debtor, in the same manner. ''^" ..,.,. .„,, 

' ' • . ' . IKTU, ll\ ., S3J4. 

and with the like authority, as if the appointment was made by 



U4 CODE OF Civil- PROCEDURE 

A. I). IWM. ' 

^""""Y— ^ the Court, accordini? to St't-tioii '^(i."), lint before the appoint- 
ment of such receiver, the Judge shall ascertain, if practicable, 
l)y the oath of the |tiirtyor otherwise, whether any other supple- 
mentary proceedings are pending against the judgment debtor; 
and if such proceedings are so pending, the plaintitT therein shall 
have notice to appear before him. and shall likewise have notice 
of all subsequent proceedings in relation to said receivership. 
No more than one receiver of the property of a judgment debtor 
shall be appointed. The Judge may also, by order, forbid a 
transfer or other disposition of the property of the judgment 
debtor not exempt from execution, and any interference there- 
with. 

Whenever the Judge shall grant an order for the appointment 
of a receiver of the property of the judgment debtor the same 
shall be filed in the office of the Clerk of the Court of Common 
Pleas of the County where the judgment roll in the action, or 
transcript from Trial Justice's judgment, upon which the pro- 
ceedings are taken, is filed ; and the said Clerk shall record the 
order in a book, to be kept for that purpose in his office, to be 
called " Book of Orders Appointing Receivers of Judgment 
Debtors," and shall note the time of the filing of said order 
therein. A certified copy of said order shall be delivered to the 
receiver named therein, and he shall be vested with the property 
and effects of the judgment debtor from the time of the filing 
and recording of the order, as aforesaid. The receiver of the 
judgment debtor shall be subject to the direction and control of 
the Court in which the judgment was obtained or docketed 
upon which the proceedings are founded. 

A certified copy of said order shall also be filed and recorded 
in the office of the Register of Mesne Conveyances of the County 
in which any real estate of such judgment debtor sought to be 
affected by such order is situated, and also in the office of the 
Register of Mesne Conveyances of the County in which such 
judgment debtor resides. 

Where jud^jmeut debtor, residing in another County, apjx'ared without 
objection, and was examined in the County where the judgment was entered, 
and a receiver was then appointed, he cannot afterwards object to such ap- 
pointment. — Green v. Bnokhart, 19 S. C, 4(»(>. 

On hearing referee's report. Judge may appoint a receiver, without notice 
having been given therefor.— DiV/i /if/ v. Foster. '21 S. C, ."^^4. And it will b6 
assumed, in absence of testimony to the contrary, that the Judge did his duty 
and ascertaineKi that no other supplementarj- proceedings were then pending 
against defendant.—/?/. And a receiver may be apj/ointed although it appean 
that there is suflBcieut property in debtor's hands to satisfy the judgment.-^ 
Jb. It is better practice to require bond of receiver so appointed.— /b. A r©» 



OV Sor'I'II CAI.'OLIN'A. 145 

A. I). IMII. 

ceivcr sliDulil not Ik« luithoriziHl to w<ll clios«'.s in action, unlcKs tl»»y repn-went "^"^^ — — '' 
(IPKpi'ratc ih'htH. —Ih. He should, iiftvr i)ayinK tho dobtw, rBtuni to thf dobt*»r 
all iiroiu'ity rcinainin}^ in his hands.—//;. 

A crmlit^)!" who obtains his jud^;int>nt aft<»r tho aj)i^)intmont of a rcHinver iu 
a former procfi'dinj^ is entitled to havi- an examination of tlie debtor ; but not 
to have ai>i>ointme7it of anothei- rei eiver.— .S'/«/rA-.s v. Hiiris, 'St H. C, IWl. 

Sec. 319. 1 1 '• anpcar tliat a persdii or corjxjration allotted to Procowii n ir .<« 
have property of the jiidmnent <lel)t()r, or indehtod to ijiiii. iiii<ith.T|.iirty i<» 
clairiis ail interest in the property adverse to him. or denies the <ii-niiii of i n- 
(l«'t)l, such interest or debt shall be recoverable only in an aetion ju<i»fiiicnt <iei>t- 
auiiinst such jierson oi- corporation by the receiver; but the -j/,,^ j885_ ■ 
.Iiidge may by order forbid a transferor other disjjosition fjfsuch 
pioperty or interest till a sufficient opportunity be given to the 
receiver to commence the action and prosecute the same to judir- 
ment and execution ; but such order may be modified or dis- 
solved by the Judge granting the same at any time on such 
security as he shall direct. 

Sec. 320. The Judge may, in his discretion, order a reference Keferfncc by 
to a referee agreed upon by the parties or appointed by him, to ~/^^,8886. ' 
report the evidence or the facts, and may, in his discretion, 
ai)point such referee in the first order at any time. 

Sec. 321. I'hc -luduc may allow to the iudgment creditor, or casts of pro- 
to any party so examined, whether a i)arty to the action or not, isro, xiv., siar. 
witness fees and disl)ursenients and a fixed sum in addition, not 
exceeding thirty dollars, as costs. 

Fee to i)laintift"s attorney not allowed. — DilUnij v. Fo.ifrr, 2\ S. C, .■{•14. And 
a tixed sum as costs must be lixed by the Jiidfjc and not by Clerk of the Court. 
—lb. 

A party is allowed not only the sum providwl by this Section, but also other 
costs due the officers of Court, and the attorneys, for their .services.— /)f/ioi/- 
les.1 Co. V. Davis, 24 S. C, o8(J. Costs of $10 for motion for appointment of 
receiver cannot be taxed, without order of Court allowinj; same. — lb. 

No error to allow sureties of debtor their fees and di.s])ursements as wit- 
neases and aLst) a fixed sum of ten dollars.— C/«'«///fnH v. Scairriyhl, :!0 S. C, 
101. 

But their payment cannot be enforced by jud>?nient and execution ; but 
must be enforced under next Section. — lb. 

Sec. 322. If any person, party or witness disobey an order of DisoiH^iU'nro 
the Judge or referee duly served, such person, party or witness punisiHHi'. 
may be punished by the Judge as for a contempt. And in all ^'•••**^- 
cases of commitment under this Chapter the person committed 
may, in case of inability to perform the act required, or to 
endure the imprisonment, be discliarged from imprisonment by 
the Court or Judge committing him. or the Court in which the 
judgment was rendered, on such terms as may be just. 

This power of the Court to enforce its own orders by attachment for con- 



146 



CODE OF CIVIL PROCEDURE 



A. D. 1894. 



tempt is not in violation of Section 14 of tlwlaration of riRhts in Constitution 
of Stiite. — Kcnnesitw Co. v. Wtilh-r, lit S. C, liM. 

But sui-L attiKlnuent should not issue until the party has had an opixir- 
tunity to answer. — Kitrlc v. Stokes, 5 H. C, ■iHt) ; K)'nnt'S4iiv Co. v. Walker, !'.« 
S. C, 104. The debtors only relief, therefore, is appeal, not hohi-as corpus. — 
InRe Knojc, .5 S. C, 71. 

The payment of all amounts ordered to be paid under the pre<;edinK Sec^tion 
must be enforced a,s here prescribed, and not by judgment and execution.— 
Chcdtliain v. Si'incii(jht, :'A) S. ('., 101. 



TITLE X. 

OF THE COSTS IN CIVIL ACTIONS. 



Sec. 



323. Costs, except in chancery cases, to 
follow event of action ; proviso ; 
chancery costs. 

324. Officers may take out execution for 
costs. 

325. Interest ou verdict or report, when 
allowed. 

326. Costs, how to be inserted in judg- 
ment; adjustment of interlocutory 
costs. 

327. Costs on postponement of trial. 

328. Costs on a motion. 



SEC. 

329. Costs agaiust an infant plaintiff. 

330. Costs In action by or against an ex- 
ecutor or administrator, trustee of 
an express trust, or a person ex- 
pressly authorized by statute to sue. 

331. Costs on review of a decision of an 
Inferior Court In a special proceed- 
ing. 

332. Costs in an action by the State. 

333. The like. 

334. Costs against assignee after action 
brouglit ; of cause of action. 



Costs, except Section 323. In every civil action commenced or prosecuted 
cas««, to°fofiow in the Courts of record of this State, (except cases in chancery.) 
proviso^* _° ' the attorneys of plaintiff or defendant shall be entitled to recover 
1892' xx\"'3o ^' costs and disbursements of the adverse party as prescribed in 
Sections 2547 to 2570, inclusive, of the Revised Statutes, such 
costs to be allowed as of course to the attorneys of j)laintiff (»r 
defendant, and all officers of the Court thereto entitled, accord- 
ingly as the action may terminate, and to be inserted in the 
judgment against the losing party to such action : ProvidiuL 
That wlierever, in any action for assault, battery, false imprison- 
ment, libel, slander, malicious prosecution, criminal conversa- 
tion, or seduction, or in any other action for damages for torts, 
the amount recovered shall be less than one hundred dollars, the 
total amount of costs and disbursements shall not exceed tlie 
amount so recovered in the action, provided no costs be allowed 
plaintiffs' (tr defendants' attorneys, except on actions jiending or 
existing liquidated contracts on the 12th day of January, IS'.CJ. 
Chancery costs. I" cases in chancery the same rule as to costs shall prevail, 
unless otherwise ordered by the Court. 



OF SOUTK (AROIJN'A. 147 

A. I). isUl. 

Costa cannot lie allowed without statutory warrant.— .S7(»^' v. Tn-iiHurvr. 10 ^— ,^— ^ 
S. C, -11 ; Si-ott V. Ali-J-uiulri\ 27 S. C, IS ; Si-iisr v. Ihilisini , :M1 H. C, TM. And 
(lUi only l)e taxwl apiinst tho i)artie8 to the nt-ord. — Shilr v. MurHhall, iS S. 
('., .V.'.l. 

Oo.sts arc not allowed in special proceedingH ; onlj' in actionH.— fVi/i((/i/*/(/ Cd. 
V. Colunihid, 4 H. C, 402. 

Wlicrt! all issues in a pending cause have been submitted t<» arbitrators, they 
may award who shall i)ay the costs. — liolhmin v. Hollnidn, (>M. C, 4H. 

The Court declined to consider whether, since the Code, costs under fonn«'r 
laws could be taxed. — 77(o//i/;.so»i v. Thompson, S. C, 2-S7. 

Costs are in the nature of damages. — K(i])}> v. Lyons, I'-i 8. C, 2HS. 

Where complaint is dismi.><sed, plaintiff is liable for all costs of the refer- 
cnc-es in the tictUn\. — Iftiffiii<ni v. Stork, 2ri S. C, 207. 

Where in action of claim and delivery the verdict gives to each party a i)or- 
tion of the projjcrty and damages, each is entitled to coats.— Stomij v. lUiiliy, 
28 S. C, 15(1. 

Costs follow the judgment in action at \ix\s\—Slmford v. Shhujlrr, IMJ y. C, 
(-.12. 

The Coiirt that gives final judgment in a chancery case is the Court to order 
as to the costs.— Cooke v. Poole, 2(5 S. C, 321. A succeeding Judge cannot dis- 
turb .such order by the trial Judge. — lb. 

Costs in eijuity cases, being within discretion of the Circuit Judge, wcmld 
not ordinarily be disturbed hy the Supreme Court. — Mars v. Connor, !t S. C, 
7'.( ; Bvatton v. Masaetj, 18 S. C, 5.5.5 ; Covar v. Salkit, 22 S. C, 2f>5 ; Ctravelyv. 
aruvely, 25 S. C, 2 ; Finch v. Finch, 28 S. C, 1(55 ; McAfee v. McAfee, 28 S. C, 
21S ; Bean v. Bean, 28 S. C, (507 ; Scott v. Scott, 2i) S. C, 414 ; Hunter v. Mills, 
2'.l S. C, 72 ; Booker v. Wiw/o, 29 S. C, 116 ; Miller v. Stork, 2<) S. C, 325 ; 
Alexander v. Maroney, 30 S. C, 3:^(5 ; Anderson v. Butler, 31 S. C, 184 ; Bre- 
denlntry v. Landrum, 32 S. C, 21(5 ; Young v. Edwards, '.SA S. C, 437 ; Dendy 
V. Waite, 3() S. C, 5(59. The Judge may in such c<vses, preparatory to their in- 
sertion in hLs decree, order the Clerk to estimate the costs.— />iVi/ v. Tajtjian, 
20 8. C, 107. 

But an appeal alleging error in awarding costs against parties not liable in 
law therefor will be detennined by the Supreme Court.— Scott v. Alexander, 
20 S. C. , 120. W^hen a board of aldennen have the one i.ssue involved in a ca.se, 
charging them with excess of authority, decided against them, they are lial)le 
for costs. — II). 

But plaintiff should not be retiuiivd to pay costs incurred in contest betwf^^n 
co-defendants. — .l/<C'/«f?i/ v. .Jones, 3(! S. C, 13S. And a pretended i)urcha.ser 
who re.si8ts action for foreclosure should pay costs. — Drnd;/ v. \\\iite, 30 S. C, 
5t59. 

The special provision in the General Statutes as to dower, renuiring the de- 
fendant to pay the exi)enseH, must be regarded as an exception to this gent'ral 
rule as to costs, and the demandant is not liable for costs on exceptions to re- 
tui'n of commissioners.— /"'ow-s/it' v. Merri weather, 20 S. C, 1^37. 

Sec. 324. Whenever a case may lie settled or detei-niiiu'd at ooi.-ers may 
the imituul cost of parties, or di.scoiitimitMl or .settled hy j)hiintiir, uon fo" «wt.T"" 
or the judgment shall be for defendant, or the e.xeeution against »87s, xvi.. en. 
the defendant shall he returned nulla bona, any of the otticei'S 
aforesaid shall have power to issue an e.xeeution for his costs, or 
the Clerk nuiy issue for the whole, directed to the SJierilT. who 
is authorized and reijuired to execute such process a.s in other 
cases of execution delivered to him. 




CODE OF CIVIL rifoCEDURE 



Sec. 325. ^VlR'Il till' jiulginent is for the recovery of money, 

Interest on . ,. .1 .■ i- n i- a . i-i • 1 i. 

veniict or n-- iiiterc'st iroiii llie tmic 01 the vonlict or report, until jiKlf^inent 

lowiHi.^ ^" " ' l)e llniilly entered, shall he fonipiitcd hy the (Merk, antl a»hk'(l to 

187(1, XIV., tsm the pogts of tlie i)arty cntitk-d tliereto. 

Strijiill V. Iii,lt. II S. C .V22. 

Costs, hinv u\ Sec. 326. 'I'lie ('li'ik shall insert in the entry of jii<l<fnient, 
jiuitwiitr; ai" <>'> tl'^' application of the piwailin;^ psu'tv, upon live days' notice 
u'riVil'iitory«ius to the other, except when the attorneys reside in the same city, 
//).,8:«r. village or town, and then upon two days' notice, the sum of the 
allowances for costs and dishursenients, as provided hy law, the 
necessary disbursements, including the fees of officers allowed by 
law, the fees of witnesses, the reasonable compensation of com- 
missioners in taking depositions, the fees of referees, and the 
expense of printing the papers for any hearing, when required 
by a rule of the Court. The di.sbursements shall be stated in 
detail and verified by affidavit. A copy of the items of the costs 
and disbursements shall be served, with a notice of adjustment. 
Whenever it shall be necessary to adjust costs in any interlocu- 
tory proceeding in an action, or in any special proceedings, the 
same shall be adjusted by the Judge before whom the same may 
be heard, or the Court before which the same may be decided or 
pending, or in such other manner as the Judge or Court may 
direct. 

This Section does not require that the costs and disbursements shall be taxed 
by the Clerk exclusively ; but the Court in equity cases has control of the 
question of costs.— Dio? v. Tnpjmn, 20 S. C, 1()7. 

And it does not prevent taxation by the Master. — lb. But erroneous taxa- 
tion directed by the Court will be reviewed by the Supreme Court.— />i7?iMf/ 
V. Foster, 21 S. C, 3:M. 

Unless the costs have been taxed by the Clerk and a motion to correct the 
taxation has been decided in the Court below, the Supreme Court will not con- 
sider any question as to same.— BratUcy v. liodlesperger, S. C, 291 ; Dilling 
v. Foster, 21 S. C, :^34 ; Cooke v. Poole, 2(; S. C, 321 ; Hecht v. Frieslehen, 28 
S. C, 181 ; Arm.stronf) v. Friesleben, 28 S. C, 00^. 

But when the taxation ha.s been heard and confirmed by Circuit Court, ap- 
peal lies to Supreme Court.— Sfe(/nll v. Bolt, 11 S. C, 522. But such order of 
confirmation is not a final judgment that allows previous orders to be re- 
viewed. — Hvffman v. Stork, 2.") S. C, 207. 

Notice of taxation may be piven by Clerk as well as by the attorneys.— C«>v- 
^0(1 V. Westjiehl, 'M S. C, 4.57. 

The fees of the officers and witnesses are in theory the disbursements paid 
by prevailing party ; but it is not error to tax them as due to them.— Lcww v. 
Brorrn, V\ S. C, 5s. And the costs of the officers need not be sworn to or cer- 
tified by them. — Cureton v. Westficld, 24 S. C, 4.51. 

Production of subpoena writ is not necessary to entitle witness to tax his 
fees. — lb. 

Disbursements must be taxed under the fee bill in force at time incuiTed.— 
lb. 






OF SOCril CAIMHJNA. I i;» 

A. I>. IKH. 

But tlicy must be v. riticl or imt allnwcil. Clinton v. IVrslJir/il, 'M H. C, *— ^^,^— ' 
■l.'.T. 

•'A lull- of Court "■ nicans a pre-existing nile of general ojM-rat ion, ami not a 
mere order /))•<) fiar ricr. — Srnll v. Ali'.raiitlrr, 27 S. ('., 15. 

Tlie rules of Court re<[uire printing of papeix only in the Kupremi- Court ; ho 
tliati)rintint; of pajx-ix in tht> ("ircuit Court cannot be taxed. //;. 

Fees of steno^raplier cjinnot 1»<' taxed.— //). 

Sec. 327. \\ Ik'Ii an .ipplicatioii shall lie made to ii ('<»iirl or c.iHtiton ix«t- 
,. , , i • I ii I i L\ 1 ■ r |>i>n I' ITU- n t of 

rclciTo to pustpoiu' a tiial, tlic iiavinent to the advci'sc |»arty of a triot 
sum not oxoi't'diu;:; tcti dolhirs, l)C'sid{!S the fees of witnesses, may "'•••''^•'• 
he imposed as the condition of granting' the postponement. 

Sec. 328. Costs may he allowed on a motion, in the discre- <'"f<t on a 
tioii of tile Court or rludge, not exceedin*; ten dollars, and may //,.,ii:ui. 
l)e ahsolutc or directed to abide the event of the action. 

Such costs are discretionaiy with the Court and cannot be taxeil without 
order allowiii}^ thorn. — Daunlliss Co. V. Ditris, 24 S. C, r>:\{\. 

ApiHiix] from refusal of (Jllerk to tax costs is not such motion.— .V/f/Zc v. Mar- 
sliull, 28 S. C, 55!). 

Sec. 329. When costs and disl)ursements are ad jiidfred a<,'ainst Cfwi uwuinst 

. , . .^. ,, Till 1 • i.1 an Infant idiiln- 

an iiilaut plamtiii, the guardian by whom he appeared in the tirr. 
action shall be responsible therefor, and payment thereof may be ^''-S**^- 
enforced by attachment. 

Sec. 330. In an action prosecuted or defended by an cxecu- cost.s in lu-tion 
tor, administrator, trustee of an express trust, or a person ex- oxmiu'?' (?r ad" 
jiressly authorized by statute, costs shall l^e recovered, as in an Jn"uv(Vanex'^I 
action 1)y and against a person prosecuting or defending in his il["'nrr,n'^',^xpn^- 
own right ; but such costs shall be chargeable only upon or col- .iL'tuu'"!.!^^.''* 
lected of the estate, fund, or ])arty represented, unless the Court i^"^"> xiv.,wi3. 
shall direct the same to be paid by the jilaintilV or defendant 
personally, for mismanagement or bad faith in such action or 
defense. 

The Court has no right to rociuire an administrator to pay costs of an action, 
pe7'sonolly, unless he has been guilty of mismanagement t)rbad faith iii that 
art ion. — Clark- v. Wric/ht, 'J'. S. C, l!t(>. And the Court should charge the 
a.Hsigned estate with costs where the a.ssiguee luid not made himself so liable 
"for mismanagement or bad faith in the conduct of the business.'— .-lAcr.s v. 
liowan. ;'.(■> S. C, 87. 

Sec, 331. When the decision of a Court of inferior jurisdic- c^ts on roviow 
tion in a special })roeeeding, including a])peals from l'r<)l»ate !,'„ " J,7,fll'"u"r 
Courts, shall be brought before the Circuit Court for review, i,^!,,",,^',,^^",^,^* 
such proceeding shall, for all purposes of costs, be deemed an '"yV-iuii— - 
action at issue, on a question of law, frotn the time (he same 
shall be brought into Court, and costs there(tn shall he awarded 
and collected as provided by law. 



l.-iO , CODE OF CIVIL PROCEDURE 

A. D. IWII. 

"""^ — ^ ' Sec. 332. I" :ill 'ivil Mctions prosecuted in the iiaiiif of the 
tion by the siato Stall', l)v ail otHcer duly autlKU'izt'd for that purpo.se, the State 

//)..« HI... slijill be liable for costs in the same cases, and to the same 
extent, as private parties. If a private person be joined with tlic 
State as })laintifT, he shall be lial)k' in the first instance for the 
defendant's costs, wiiich shall not be recovered of the State till 
after execution issued therefor against such private party and 
retunicd unsatisfied. 

The like. Sec. 333. Ii' im iictiou prosecuted in the name of the State 

lb., §346. £^j. ^^^ recovery of money or property, or to establish a right or 
claim for the benefit of any County, city, town, village, corpora- 
tion, or person, costs awarded against the plaintiff shall be a 
charge against the party for whose benefit the action was prose- 
cuted, and not against the State. 

Costs against Sec. 334. l^ actions in which the cause of action shall, by 
assignee after «^^' ^^ ■^' ' -^ 

action brought, assignment after the commencement of the action, or m any 

of aiuse i)f ac- ^ ** 

tion. other manner, become tlie property of a person not a party to 

the action, such person shall be liable for the costs and disburse- 
ments in the same manner as if he were a party, and payment 
thereof may be enforced by attachment. 

Costs against a person not party to the action cannot be taxed by the Clerk ; 
they can only be enforced by attachment on rale to show cause. — State v. 
Marshall, 28 S. C, 55!). 



TITLE XL 

OF APPEALS IN CIVIL ACTIONS. 



Chapter I. — Appeals in General. 
Ch.vpter II. — Ajfpeals to the Sujfrenie Court. 
Cii.M'TKK III. — Appeal to the Circuit Court from an Inferior 
Court. 



CHAPTER \. 
Appeals in General. 

Sec. j SEC. 

.335. Mode of reviewing judgment or ' 340. Clerk to transmit papers to appellate 

order. Court. 

386. Orders made out of Court, how va- 341. hitennedlate orders alTeeting the 



cated or modllled. 
.S37. Who may appeal. 
33S. Parties, how ilesignatwl on appeal. 
:«!!. Appeal, how made. 



judgment may be reviewed on the 
appeal from the judgment. 

S42. Judgment on appeal. 

343. How and when printing, etc., dls- 
penseti with. 



OF SOl'I'II CAI.'OMNA. lol 

A. I». l^'.M. 

Section 335. I'l^^' <»iil.v hkxIc of n-viowinp u jiulj^nieiit or '^- — ^ — ^ 
onk'V in a civil or ciiiniiial iicti(»ii shall In- (hat pn'siTihcd by vi/'winif ju<iifl 

*'"« ''t'l'. 1K70. XIV., *:jl'... 

No appeal lies from a verdict of u jury.— Winsuiith v. W'nlhrr, 5 S. C, 4T.i : 
Hunk V. Gary, 14 S. C"., TiT'^. Nor from order made out of Court, without 
notice to the adverse party.— ///// v. Watson, 10 S. C, 2<»8. 

Sec, 336. '^11 <»i"ili'r iiKule out of Court, without notice to onicn* umu- 
the advcisc party, may he vacated or modilied, without notice, how vmratwi'or 
l)y the .ludiTc wlm made it, or may be vacated or modified, on ""^^^ j^ 
notice, in the manner in wliich other motions are made. 

Sec. 337. Any party airi^rieved may apjieal in the cases pre- ^y'"' "'«v »i'- 

scril)ed in this Title. //.., «:iji. 

Tho word "ca.-^t's" comprehends special proceedings. — Srasr v. Hnhsoti, :V'> 
a. v.. 5.>». 

Sec. 338. The i)artv appealing shall be kiu)wn as the appel- Partus, how 

1 II T i ii 1, i>iiii-iij- dt^iffna ted on 

Jant, and the adverse party as the respondent. Jiut tiie title oi appeal 

the action shall not be changed in consequenee of the appeal. /''•, S353. 

Sec. 339. (1-) An appeal must be made by the service of a Appeal, how 
notice, in writing, on the adverse party or his attorney, and. in 7/,./g35:i; ist^, 
the cases provided by law, on the Judge or Trial Justice, or jy{j' ''^' '*'*'• 
other ofHcer who heard the cause, with whom the judgment or 
order apjiealed from is entered, stating the appeal from the same, 
or some specified part thereof. (2.) When a party shall give, in 
good faith, notice of appeal from a judgmeiit or order, and shall 
omit, through mistake, to do any other act necessary to perfect 
the appeal or to stay proceedings, the Court may permit an 
amendment on such terms as may be just. 

A notice of appeal from an order for judgment, instead of from the judg- 
ment itself, will be treated as proper notice. — Boyl.ston v. Cretvs, 2 S. C, 422. 
The notice must be in writing. — Abney v. Cole, 30 S. C, (K)7. 

See cases under Sec. 349. 

Sec. 340. If the aiipellant shall not, within twenty da vs after cierktotrans- 

' ' . m 1 t papers to 

his api)eal is perfected, cause a certified copy of the notice of appellate court, 
appeal and of the judgment roll, or, if the appeal be from an "^''^'^•• 
order or any part thereof, a certified copy of such order, and the 
papers upon which the order was granted, to be transmitted to 
the a])pellate Court by the Clerk with whom the notice of appeal 
is filed, the res})ondent may cause such certified copy to be trans- 
mitted by such Clerk to the appellate Court, and recover the 
expenses thereof, as a disbursement on such appeal, in case the 
judgment or order apjiealed from shall be in whole or in ]»art 
affirmed : and this provision shall a])ply to all appeals heretofore 



152 

A. n. i^'iM. 



Intcrnrirdln 1 1- 
onlei-s iilTiM-tliitf 
the Jiul>riiiciit 
may lit- ic\ It-w- 
ed on the uppcal 
from the judg- 
ment. 
1870, XIV., gSif)! 

Judgment on 
appeul. ___ 



CODE OF CIVIL PROCEDURE 



How and when 
print i n g, eto., 
dispensed wUh. 

1873, XV., 501. 



taken, wliere the appeal has not been dismissed in the manner 
proviih'd Ity the rules of the a])pellate Court. 

Sec. 341. Upon an ajjpeai from a jndj^ment, the Court may 
review any immediate order involving the merits and neeessarily 
affecting the judgment. 
See cases under Section 1 1 . 

Sec. 342. I'pon an appeal from a judgment or order, the 

appellate Court may reverse, affirm or modify the judgment or 

order appealed from, in the respect mentioned in the notice of 

appeal, and as to any or all of the parties, and may, if necessary 

or proper, order a new trial. When the judgment is reversed or 

modified, the appellate Court may make complete restitution of 

all property and rights lost by the erroneous judgment. 

The Supreme Conrt cannot modify a judgment of the Court below, in a case 
at law ; it can only reverse or affirm. —Hosford v. Wi/nn, '.ir.i S. C, -iVi. 

Sec. 343. No rule or order of any Court or Judge shall require 
the })rinting of any l)rief, report, or other paper connected with 
ap[)eals, by any party to an action or proceeding who makes an 
affidavit, to be filed with the Clerk of the Supreme Court, that 
he or she is unable to pay for such printing. 



CHAPTER II. 

Appeals to the Supreme Court. 



Sec. sec. 

344. Appeal, in what cases. i 351. 

34.5. When appeal may be talcen ; notice ; 
serving case and exceptions; propos- 
ing amendments settlinsr case ; dock- , 3.52. 
eting appeal ; waiver of ; agreed ! 
statement. | 

34G. When notice of appeal may stay exe- 3.5;i. 

cution ; undertaking on appeal. 

347. New undertaking in case sureties In- X>i. 

.solvent. 

.34)S. Extending time for certain steps in 355. 

appeals. 

34!). Appeal, how perfected. 35(i. 

330. If judgment he to deliver document 

or personal property. It must be de- 'iH'i. 

posited or security given. 



If judgment be to execute convey- 
ance, it mu.st be executed and de- 
posit*^!. 

Security where judgment Is to de- 
liver real property, or for a .sale of 
mortgiigwl prendses. 
Stay of prtK-eedlngs upon security be- 
ing given. 

Undertakings may be in one instru- 
ment or several. 
Security U> be approved and sureties 
to justify. 
Perishable property may be sold, not- 
withstanding ap|K>al. 
Undertaking must be tllc<l. 



Section 344. An a))i)eal may be taken to the Supreme Court 
Miciitioiied in Section 11. AVhen the Circuit Court 



Appeal, in 
what cases. i,, tiu- caso 

' shall render judgment u])on a verdict taken, subject to the opin 
ion of the Court, the questions or conclusions of law, together 
with a concise statement of the facts upon which they arose, 



OF SOT'TII CAROTJNA. 153 

~" A. I>. I^"-*"!. 

sli.-ill lie |ii'('|);iiTil l)\ ,111(1 iiimIci' the d ii'cct imi (,[ tlir ('oiirt, mimI ' ■ ' 

sliiill he (ili'd with {\\v jiul«,Miu'nt roll and Itc; (h'ciiiod u part 

thci'cor fdi' tlie j)ur])oses of a review in the Siijireiiie Court. 

The pidvisions of this 8ectioii shall apply to any judf^jnicnt 

therein nientinne(l that lias lieen heretofore rendered, and ujton 

which an ap]ieal has heen brouglit and is now jx-nding, or upon 

which an appeal shall hereafter be brought. \\ hen the return 

has already tieen tiled witli tlie Clerk of the Supreme Court, sueli 

statement shall lie tiled with him and be deemed a part of such 

retiii'M. 

Sec. 345. '• 111 every aiiiieal to the 8u])reme Court from an wii.n iip|..-ai 

II -ij 11 1111. "'"y '"' '"•»'■" '• 

order, (iecriH' or pulgment jjranted or rendered at chamhers Irom nouw; sfiviiiK 

wliieh an appeal may be taken to the Supreme Court, the appel- tions; pn.iH.sirnf 

laiii or his attorney shall, within ten days after written notice set tiinB «!.-«•; 

.1 1111 ji 1* .1 . tJ(M'kc 1 1 n J? ap- 

tliat siicii order iias been granted or decree or judgment ren- pf-ai, waiver of, 
dered, give notice to the opposite party or his attorney of his nfent. 
intention to appeal ; and in all other appeals to the Supreme ih7k""\v^"(^: 
Court the apjiellant or his attorney shall, within ten days after }|;j^'|y-.^''-*= 
the rising of the Circuit Court, give like notice of his intention 
to appeal to the opposite party or his attorney, and within thirty 
days after such notice the appellant or his attorney shall prejiare 
a case with exceptions and serve them on the op])ositc party or 
his attorney. The respondent, within ten days after service of 
such case, may propose any objection thereto or alteration thereof, 
and the case shall be settled in such mode as may be provided in 
the rules of the Supreme Court. 

••2. The case shall be placed on the docket of the Su|)reme 
Court at such time as may be fixed by the rules of tlie Supreme 
Court. 

I}. Whenever t he appellant shall fail lo perfect his appeal, his 
failure to do so shall amount to a waiver thereof, unless the 
Court i)ermit the appeal to be perfected as provided in Sections 
330 and ;>4'.». 

4. l'i)on appeals to the Supreme C-ourt, in ease the attornevs 
for the appellant and res])ondent shall agree upon a statement of 
tlie case as prepared by them for the bearing of the Supreme 
Court, such .statement of the case shall be a suHicient brief of 
the same, and no return ov other pajier from the Circuit Court 
shall be rcfpiired. 

Upon the transmission of a certified copy of such aL;rcciiiciit 
to the Clerk of the appellate ('oiirt. within the lime now 
re(piired by law, he shall place said cause on the docket lor m 
hearing by said CV>urt. 



l.-)4 CODK OF CIVIL I'KUCEDUKE 

A. 1). isill. 



Tlif tiiiu' forapiical runs fruin writtfii notice of the judKTuunt at chiunlHTh. 
iintwithstaiulin;^ actual notice i)revioiisly hiul.— L<ikr v. MoDir. 12 S. (;., r>('(4. 

Notice of ai>iH'al within ten days after entry of jiulffinent on a verdict, but 
more than ten days after risin^j of the Court, is sulHcieut.— /i'/»iA- v. (I'liry, 14 
S. v., r.Tl ; Mnhtir v. Ji. It Co., :n S. C, r,UK 

Where i)arty fails to serve notice of api>eal within the time, the apiM-al will 
be dismissed on motion. — yi'of/«'/-s v. Xush, 12 S. ('., .W.t. So if he fail to serve 
his «use within time. — //>.,■ McEhver v. McKlwi-r, 14 S. C, <S2;i 

The Sujirenie Court has no power to reminly the omis,sion to f^ye notice of 
appeal within the ten days, which is imperative. — //fn?u'A-<'/' v. Warren. 2() S. 
C, 5S1. 

Nor to exteud the time within which toservetheca.se. — Scurry v. ('nli'innn. 
14 S. c, m\. 

Notice of appeal within ten days from notice of tiling a decree at chamben-, 
and .service of casL- within thirty days thereafter, Ih a compliance with tht- 
law. — GndhoUl V. V<iurp, 14 S. C., 45S. 

Appeal di.smis.sed because notice wa.s not served in time. Service being d<- 
nied, appellant was bound to prove it.— AUen v. Stokes, I'.t S. C., W2. 

Theapi»ellant is contined to matters in Jud{^e"s view of the case an<l em- 
braced in his exceptions ; but respondent may rely ui)on other and any grounds 
to sustain the judgment. — Southern Co. v. Thew, 5 S. C, 5 ; Sheriff v. WrI 
lioni, 14 S. C, 487. 

Wliere an exception is founded on facts, they must appear in the ciLsi*. and 
not iu the exception alone, or the Supreme Court will notconsider it.— T/ioih^^ 
son V. Thompson, S. C, 27'.» ; State v. Snttenvhite, 20 S. C, XW ; McPhersonv. 
McPherson, 21 S. C, 2(u ; State v. Jenkins, 21 S. C, 5W. 

Exceptions must point out the specific en'ors complaineti of.—Shelton v. 
Mayhin, 4 S. C, 541 ; Fox v. R. K. Co., 4 S. C, 544 ; Ulnsmith v. Walker, 5 S. 
C, 473 : R. R. Co. V. R. R. Co., 7 S. C, 410 ; Clarke v. Harper, 8 S. C, 2.5«; ; 
State V. Coleman, 11 S. C, 392 ; Lawrence v. Grambling, 13 S. C, 120 ; John- 
son V. Clarke, 15 S. C, 72 ; Cureton v. Dargan, 1(5 S. C, 619 ; McClure v. Lan- 
caster, 'M S. C. 280. 

General exceptions will not be considered.— S^o^c v. Gilreath, 16 S. C, 105 ; 
Paris V. DuPrc, 17 S. C, 288 ; Walker v. Walker, 17 S. C, :«S ; Fields v. 
Hurst, 20 S. C, 293 ; Ctireton v. Stokes, 20 S. C, 58:^ ; Johnson v. Frazee, 20 S. 
C, 503 ; Lanier v. Tolleson, 20 S. C, 62 ; Bauskett v. Keitt, 22 S. C, 200 : C<>- 
var V. Sallat, 22 S. C, 271 ; Pudigon v. Cablet, 24 S. C, 478 ; Coin v. Coin, 24 
S. C, 597. 

An exception in the nature of argument is not iu proper form.— .l/.s7*rof(A- v. 
Watts, 19 S. C, 543. 

Exceptions by mere reference back to exceptions considered on Circuit are 
not in x)roper form. — Harbin v. Parker, 19 S. C, 5tl8. 

The exceptions must be served within the reciuired time. — Hell v. Wheeler, 
3 S. C, 104 ; Wcatherly v. Jackson, 3 S. C, 22S ; Sjiratt v. Picrson, 4 S. C., :i08 ; 
Kiblerv. Mcllivaine, 12 S. C, 555 ; Rogers v. Nash, 12 S. C. 559 ; Sullivan v. 
Speights, 12 S. C, 561 : Ex Parte Clyde, 14 S. C, 1385 ; Blakely v. Frazier, 15 
S. C, 600. 

A " case" is a clear and intelligible statement of all the proceedings on the 
trial important to a review of a cause, upon the points raised by the appeal.— 
Sullivan V. Thomn.s, 3 S. C, 531. 

The proiKJsed case may be serve<l in parts, so they are within time.— -4/'<7»«^ 
V. Long, 'V> S. C, 5S5. A copy of the case may be tiled. — //'. 

The power of a Judge to .settle a case is not personal, but may be exercised 
by his successor in office — Chalk v. Patterson, 4 S. C. 98. 

He settles the case at the time and place for settlement, and must not regard 



OF SOUTH CAK'OM.VA. i:)-, 

A. I>. 1M>«. 

the respondent's amendments proiKjsed as aluindDUi'd because his attorney does *— y"""^ 
not apponr. — lb. 

Till' oiso may be settled upon aOldavits and other proofs, as well as upon the 
minutes and iHTsonal rccollectionH of the Judge.— /fe. 

If casH proposed does not satisfy resiM)U(lent, he must proceed to remedy it 
under the rules, as no <\r parte statements will be considered by the Supreme 
Vonrt. —Horufshy v. Jhnilill, !>S. C, -Mi ; Jiavsoiti v. Anilrrsmi, V H. C, 4.HS. 

if brief pres<>nted is not the axse as settled, the appeal will be dismi8se<l.— 
Collins V. lioumilhit, 22 S. C, :i8St. 

If case for appeal is incoiTect or improper, it can only be taken advantage 
of on proper motion before the submission or hearing ; it is too late after hear- 
ing begins. —i5>'i(//ira>i V. Thfnnaa, 'i S. C, 5-lS ; Rcddiiuj v. I{. R. Co., .5 8. C, <)7; 
Urven v. R. R. Co., (i S. C, •AA2. 

The case is defective if it does not contain a proper statement of the nature 
of the issue to which the judgment appealed relates. — Trotter v. Robinson, G 
S. C, 410. 

And when it does not contain an intelligible statement of the case and 
gi'ounds of appeal it will be stricken from the docket. — Shtimafe v. Powell, .5 
S. C. , 2Si'>. Or if it does not contain exceptions specif jdug the errors complained 
of. — Cureton v. Darycrn. H> S. C, (ll'.l. 

When party fails to tile retm-n within forty days as required by the Rule 1 
of Supreme Court, his appeal will be dismissed on motion. — Agnew v. Adam.<i, 
24 S. C, '.to ; Nabors v. Latimer, SO S. C, COT ; Abney v. Cole, 30 S. C, 607 ; 
Cairo V. R. R. Co., 130 S. C, (JOS. Where both parties appeal, one docketing is 
sufficient.— Co/«'»ian v. Keels, 31 S, C, Cm. 

Where appellant fails to appear on regular call of case on the docket, the 
appeal will be dismissed, on motion, for want of prosecution. — Vam v. TFi7- 
<!«»!», 30 s.c.,t;os. 

Where waiver and order of dismissal by Clerk have not been brought to at- 
tention of the Court, and the papers presented show an appeal, the Court will 
consider it. — Coleman v. Keels, 31 S. C, (501. 

An " agreed case," with notice of appeal and exceptions, constitutes the re- 
turn, and no other papers ai-e required to be ^ed.—McNair v. Craig, 34 S. C, 
9 ; Davis v. Pollock, :io S. C, 584. 

It must be filed with Clerk of the Circuit Court, within ten days, under 
Rule 4'.t of that Court.— C/tJso/iu v. Providence Co., 3.5 S. C, 599. 

Sec. 346. A notice of appeal from a judgment directing the when notice 
payment of money shall not stay the execution of the judgment >uv'ex"<'utioiK 
unless the presiding Judge before whom the judgment was ob- ap|ltll]"'""*'' "" 
tained shall grant a stay of execution ; but after notice of appeal jJu^.'^-i^ Iv" 
the plaintilf shall not enforce a sale of property without giving ^i- ' 
an undertaking or bond to tlie defendant, with two good sure- 
ties, in double tlie a])praised value of the property, or double tlie 
amount of the judgment, conditioned to pay all damages which 
the defendant nuiy sus^tain by reason of such sale in case the 
judgment is reversed. Nor shall the })laintilT in such case be 
allowed to proceed with a sale of defendant's ^jroperty if the 
defendant do enter into an undertaking, with good sureties, in 
doul)le the appraised valued of the said property, or the amount 
of the judgniont, to i)ay tlie judgment, with legal inti'rest. and 
11 



156 CODE OF CIVIL PROCEDURE 

A. D. IWM. ~~ 



all costs and damages which the plaintiff may sustain by reason 
of the appeal, or ])rudiice the j)roi)erty levied on, and submit to 
the sale in case the judgment be confirmed. 

The stay of execution is discretionary with the Judge ; it is not mandatory. 
— Brown v. liuttz, 15 S. C, 4H.S. 

Sherifif after appeal is not puilty of any breach of duty in failing to enforce 
a sale of property, without the i)laintiff giving the bond so required.— 6'<at« v. 
Gilreuth, 10 S. C, 100. 

New under- Sec. 347. Whenever it shall be made satisfactorily to appear 
M^ils'i°n^N to the Court that since the execution of the undertaking the 
ll-a'-^^—^ifn sureties have become insolvent, the Court may, by rule or order, 
require the appellant to execute, file and serve a new undertak- 
ing as above ; and in case of neglect to execute such undertaking 
within twenty days after the service of a copy of the rule or 
order requiring such new undertaking, the appeal may, on mo- 
tion to the Court, be dismi-ssed with costs. AMienever it shall 
be necessary for a party to any action or proceeding to give a 
bond or an undertaking with surety or sureties, he may, in lieu 
thereof, deposit with the ofiicer, or into Court, as the case may 
require, money to the amount for which such bond or undertak- 
ing is to be given. The Court in which such action or proceed- 
ing is pending may direct what disposition shall be made of such 
money pending the action or proceeding. In any case where, 
by this Section, the money is to be deposited with an oflticer, a 
Judge of the Court, in term or at chambers, upon the applica- 
tion of either party, may, before such deposit is made, order it 
to be deposited in Court instead of with such officer ; and a 
deposit made pursuant to such order shall be of the same effect 
as if made with such officer. 
Extendinptime Sgc. 348. The time for taking any step or proceeding in the 
^r^gainsteps j,j.(3p.^j..^^i,^i^ .^j^j perfection of appeals from the Circuit Courts to 
368*^' ^^ ^ ^" the Supreme Court, as now prescribed by law, may be extended 
by the Judge who heard the cause, or by any one of the Justices 
of the Supreme Court, upon four days' notice of such motion 
being first given to the opposite party, except the time of giving 
notice of appeal to the opposite party. 

The Supreme Court has no power to remedy the omission to give the notice 
of api)eal within the required time of ten dmy?,.— licnncker v. H'arren, 20 S. 
C.,.W1. 

Such motion for extension of time must be made before the expiration of 
the time limitcd.-67/i6/ni(/ v. Johns, 10 S. C, 112 ; Tribble v. Poore, 2« S. C, 
hi)o. 

perfS'. ^""^ Sec. 349. ^Vlif" ii"y Piirty shall omit, through mistake or 
1880, XVII., inadvertence, to do any act or acts necessary to perfect an appeal. 



OF SOUTH CAROLINA. I57 

~ A. r>. i«M. 

or to stay proceedin^% tlio Supreme Court may. in their discrc- "^ v ' 

tion, permit sucli net or uets to he done at any time to perfect 
tlic ai)poai on sucli terms aa may ho just, provided that the Court 
shall be satisfied that the appeal was taken bona fide, and ])ro- 
vided that notice of the same was ^nven as now required by law. 

This Soction is ouly intended to 8upi)ly defects in order to i)erfect appeals ; 
and lu iiftor appeal luus teen dismissed there is no appeal, it cannot apply — 
Clarh V. U'imhrrly, 24 S. (\, i;iS. 

But notice of api>eul havinj,' been (nven, the Court has power to relieve 
against the consefiuences of other omissions.— irarr^dw v. Ershinc "OS C 
6»2. 

Court may grant leave to perfect appeal for excusable neglect in failing to 
file exceptions within ton days after rising of Court in case of jury trial.— 
Ilarle v. Morgan, :H) S. C, (ill. 

Where notice of appeal has not been given in writing, as required by law, 
no relief under this Section can bo had. — Abney v. Cole, SO S. C, JX)?. 

Where appellant was honestly mistaken in supposing that the " case "' for 
apiieal should constitute a pjirt of the judgment roU and failed to file the 
return within the time, he was allowed to reinstate his appeal, dismissed by 
the Clerk for such failure—Tribblc v. Foore. 28 S. C, o05 ; Cutaminas v U'inao 
28 S. C, (510. 

But such relief mu.st be obtained on motion based upon affidavits, and the 
notice of motion and copies of the affidavits must be served on the opposite 
party at least eight days before hearing.— C'uHi7Htn(/.s v. Wingo, 2-8 S. C. (JIO. 

Notice of appeal given within ten days after entry of judgment on a verdict 
rendered in term time, but more than ten days after rising of the Court, is 
Bufficieut.— J/o/atr v. R. li. Co., 31 S. C, 510. 

Sec. 350. If the judgment appealed from direct the a.ssiirn- if judgment 
ment or delivery of documents or personal property, the execu- dc^Jmei^t'of 
tion of the judgment shall not be stayed by appeal, unless the ^tyTmiTsX 
things required to be assigned or delivered be brought into Court,, Sayffen!'" 
or placed in the custody of such officer or receiver as the Court i^""- ^'v., «ei. 
shall ajjpoint, or unless an undertaking be entered into on the 
part of the appellant, by at least two sureties, and in sucli amount 
as the Court, or a Judge thereof, shall direct, to the effect that 
the aj)pelhint will obey the order of the Supreme Court upon the 
appeal. 

An order directing executor to turn over assets to a receiver is not stayed by 
appeal to Supreme Court unless a siiprrscdeas bond be given as required by 
order of that Court.— Harmon v. Wayencr, ;i'} S. C, 4S7. 

Sec. 351. If the judgment appealed from direct the execu- if ju.iRn.ent n- 
tiouof acouvoyance or other instrument, the execution of t]w ':iuZ"X ^il'Zl 
judgment shall not be stayed by the appeal until the iu.strumcnt luVx-S:"^ ""'' 
shall have been executed and deposited with the Clerk with whom '''- ""• 
the judgment is entered, to abide the judgment of the Supreme 
Court. 



158 CODE OF CIVIL PROCEDURE 

A. D. IWM. " 

'" — ^ ' Sec. 352. If the judgment appealed from direct the sale or 

jiiii^Miunt Ls to delivery of possession of real property, the execution of the same 
pn.pcriy, or tor sliull not be stayed, unless a written undertaking be executed on 
jniKwi pn^-mises' the part of the appellant, with two sureties, to the effect that, 
/>... ssoi. during the possession of such property by the a])])ellaiit. lie will 
not commit, or suffer to be committed, any waste thereon, and 
that if the judgment be affirmed he will pay the value of the 
use and occupation of the property, from the time of the appeal 
until the delivery of possession thereof, pursuant to the judg- 
ment, not exceeding a sum to be fixed by a Judge of the Court 
by which judgment was rendered, and which shall be specified 
in the undertaking. AVhen the judgment is for the sale of mort- 
gaged premises and the payment of a deficiency arising upon 
the sale, the undertaking shall also provide for the payment of 
such deficiency. 

Stay of sale, pending appeal from decree of foreclosure, is not permitted 
unless the appellant has executed the written undertaking required.— C'«7i/ 
Council V. Caulfield, 19 S. C, 201 ; Gerald v. Gerald, 30 S. C, 348 ; Stanley v. 
Stanley, S.^ S. C, 584. 

When defendant surrendered possession of the premises, at the sale, th.it 
was '• delivery of possession pursuant to the judgment," and the undertaking; 
was then payable.— Ceroid v. Gerald, 30 S. C, 348 ; £ar PaHe Winkler. :;i S. 
C. 171. 

Stay of pro- Scc. 353. Whenever the defendant executes the bond herf- 
^^^|;?f^ ijJ^jP^g inbef ore prescribed, or the appeal is perfected as provided l>y 

eiven. Sections 34G, 350, 351 and 352, it stavs all further proceedinLTS 

xv.i'ooi. ' ' in the Court below upon the judgment appealed from, or upon 
the matter embraced therein ; but the Court below may profrt-d 
upon any other matter included in the action and not afferti-d 
by the judgment appealed from. And the Court below may, in 
its discretion, dispense with or limit the security required l»y 
Sections 34G, 350 and 352 when the appellant is an executor, 
administrator, trustee, or other person acting in another's right ; 
and may also limit such security to an amount not less than fifty 
thousand dollars in the cases mentioned in Sections 350, 351 
and 352 where it would otherwise, according to those Sections, 
exceed that sum. 

The discretion of the Court as to security required will not be exercised with- 
out proper showing to justify^ it. —Stanley v. Stanley, 35 S. C, ,584. 

undertakinps Sbc. 354. The Undertakings prescribed by Sections 346, 347 
uistnim c n t° or aiid 352 may be in one instrument or several, at the option of 
several. ^j^g appellant ; and a copv, includinsj the names and residence of 

1S70, XIV., 6355; , ^ V. , '' , , '^^ , . , 

isTi, XV., 501, the sureties, must be served on the adverse party, with a notice 
of appeal, unless a deposit is made as provided in Section 347] 
and notice thereof given. 



OF SOUTH (JAKULliNA. i:,:i 

A. I>. IM!i(. 

Sec. 355. All ini(l(Mi;ikiii;^ upon an !i|)|)tNil sliiill Ix- of iif) "" ^^—^ 

c'tVt't't imk'ss it l)t( accotiipiinicd Ity tlu.' aflidavit of tlu; .suri'licH uiiprove*/ a"n<i 
that they are each worth double tlie uinoimt specified therein. I'fv.' *^ "■""" ' 
The respondent may, however, except to tlie HulHciency of the ^''• 

huretics, within ten days after the notice of the appeal ; and un- 
less they or otlier sureties justify l)cfore a Judge, or Clerk of \\w. 
Court below, as prescribed by .Sections 'IVl and 218, M'ithin ten 
days thereafter, the appeal shall be regarded as if no undertak- 
ing had been given. The justification shall be upon a notice of 
not less than five days. 

Sec. 356. In cases not provided for in Sections I34G, 350, when app<«i 
351, 352 and 353, the notice of appeal shall stay proceedings in ?n(iVhTwr«-x- 
tho Court below upon the judgment appealed from, except that (M-rulbubUMirojl' 
where it directs the sale of perishable property the Court below t " aj-ix^i'' 'from 
may order the property to be sold and the proceeds thereof to {nK^denium""' 
be deposited or invested in this State or United States bonds, /^..-it*;?, xix. 

. He?; 18S«, XX., 

to abide the judgment of the Supreme Court : Provided, An ^^^■ 
appeal from a judgment or decree overruling a demurrer shall 
stay the further hearing of the cause unless the presiding Judge 
shall be satisfied that the ends of justice will be subserved by 
proceeding with the trial and shall order the trial of the cause 
to proceed to judgment : Provided, further, That nothing con- 
tained in the preceding proviso shall be construed to prevent a 
review, upon appeal from the final order or judgment in the cause, 
of any judgment or decree on demurrer. 

Appeal from order overruling demurrer to one cause of action shall stay 
proceedings as to second cause of action. — Hammond v. li. li. Co., 1.5 S.X^-, 1*^- 

When appeal from an order confirming the sale in an action for foreclosure 
has been taken, it operates to stay proceedings to put the ptirchaser in posses- 
sion. — LeConte v. Invin, 2:J S. C, IW). 

A notice of appeal, orally given, from an order refusing an oral demurrer, 
stays the further hearing of the cause on the Circuit. — Elliott v. Pollitzer, 24 
S. C, HI. 

Appeal from return of homestead appraisers operates as a supersedeas upon 
all the proceedings in the Court helow .—Simonds v. Haithcock, 2(5 S. C, .W.^. 

But appeal from order setting aside attachment does not stay trial of cause 
upon merits. — Cure/on v. Dargan, 16 S. C, 019. 

Sec. 357. The undertaking must be filed with the Clerk with undertakinfr 
wliom the judgment or order appealed from was entered, ''he "^7xIv'*^ic^ 
provisions of this Chapter as to the security to be given upon 
appeals and as to the stay of proceedings shall apply to appeals 
taken under subdivision 3 of Section 11. 




CODE OF CIVIL PROCEDURE 



CHAPTER III. 
Appeal to the Circuit Court from an Inferior Court. 



Sec. 
353. By what Courts Juilgroents to be re- 
viewed ; to be heard ou the papers. 
8.59. Appeal, when to l>e taken. 



SEC. 
304. Further n-tum. 
^Ho. Jastlce dead, insane or absent. 
.SGij. Hf-ariDK upon return. 



300. Notice of appeal to be ser\'ed on Jus- | 3U7. Appeal to be heard on the original 



tlce, and on respondent, agent or 

attorney. 
361. Filing In lieu of service of notice of 

appeal. 
302. Return, when and bow made and 

compelled. 
SC3. How made If Justice be out of oflSce. 



papers. 
308. Judgment on appeal ; new trial. 
300. Judgment roll. 
370. Costs, how awarded. 
.371. Restitution. 

37;i. Setting off costs and recovery. 
873. The costs on appeal. 



By what Court Sectioil 358. AVhen a judgment is rendered by a Trial Jus- 
revved'^ to be tice's Court, by the County Commissioners, or any other inferior 
papers." ° '^^ Court or jurisdiction, save the Probate Court heretofore provided 
I'll-' $Jt" fi^^' for in this Code of Procedure, the appeal shall be to the Circuit 
Court of the County wherein the judgment was rendered, and 
shall amount to a supersedeas if the party against whom judg- 
ment is rendered shall execute a good and sufficient bond with 
surety to pay the amount of the judgment and costs in the event 
that he fail to sustain such appeal ; and in all cases in which such 
bond with surety shall be filed, no execution shall issue until the 
termination of such appeal. The said appeal shall be heard by 
the Court upon all the papers in the case, including the testi- 
mony on the trial, which shall be taken down in writing and 
signed by the witnesses, and the grounds of exception made, 
without the examination of witnesses in the Court. 

This Section does not purport to confer the right of appeal in any case ; but 
simply to provide to what Court such appeal shall be made, how it shall oper- 
ate as a supersedeas, &Tid how it shall be heard. — Whipper v. Talbird, :W 
S. C, 1. 

No appeal lies from the decision of a State Board of Canvassers, it not being 
an inferior Court. — lb. 

An appeal from the City Court of Charleston does not lie to Circuit Court, 
but must be taken to the Supreme Court exclusively, under the particular 
intention declared in Section 22()<), Greneral Statutes, although it is an inferior 
Court.— Ci7y Council v. Walker, "A S. C, :i57. 

This Section as to hearing of appeal in Circuit Court did not apply to api>eals 
before it went into effect, May 1st, ist»2.— J/oFo(/rfrn v. Taut, 'JO S. C, .Vvi. 

An appeal from an order made by two Trial Justices discharging a prisoner 
under habeas corpus proceedings cannot be taken to the Supreme Court ; it 
must be taken to the Circuit Court.— 5^^afc v. Duncan, 22 S. C, 87. 

Party may appeal from judgment by Trial Justice ^vithout making a motion 
for new trial before him.—Minnick v. Fort, 13 S. C, 21.5. 



OF SOUTii CAROLINA. IGl 

" A. D. 1«V|. 



The (Mrcuit Court cannot review flndinjo^ of fiK-t to wliidi no exceptions . 

wore taken. — Hums v. (U>wi-i% 84 S. C, KM). 

The object of cxcei>tions is to point out the particulars in which the errors 
of hiw comi)lnintKl of consist.— Wolff v. A*, li. i 'n., '2r> H. ('., :{7'.t. 

And wlicre the (ground of ai)iM'al taken is tliat "manifest injuHti<'e liad been 
done, and tliat defendant's default in not bein^ present at trial waa excusa- 
ble," it is insufficient.—//;. 

An appeal lies to the Circuit Court from an order of Trial Justice granting a 
new trial.— Redfeam v. Douglass, S5 S. C, 5(59. 

Sec. 359. The appellant shall, within five days after jud^'- Appeal, when 
nient. serve a notiee ot appeal, stating the grounds ujxtn wludi j,,f^n. "' 
the appeal is founded. If the judgment is rendered n\)nn pro- 
cess not personally served, and the defendant did not appear, he 
shall have five days after personal notice of the judgment to 
serve the notice of appeal provided for in this and the next Sec- 
tion, 

The Circuit Judge hae no power to extend this time within which to appeal. 
— Davis V. Vauyhan, 1 S. C, :^'2. Nor jurisdiction to hear an appeal where 
notice in writing was not served within that time.— />ofi'.s v. Vauyhan, 7 S. C, 
•MS ; Scott V. Pratt, S. C, 8'J ; Foot v. Williams, 13 S. C, «X)1. 

The notice of appeal must state the grounds in every case. — Stemberger v. 
.1/fvS'icc«'*i, 14S. C, :«. 

The gi-ounds of appeal being referred to in notice, as being made before the 
Trial Justice on motion for new trial and on the evidence and records, is a 
sufficient statement of the grounds. — Daryan v. West, 27 S. C, 15(i. When no 
objection is raised in the Circuit Court as to the sufficiency of the notice of 
api)eal, it cannot properly be raised on appeal to Supreme Covirt.— 76. 

Sec 360. The notice of appeal must, within the same time, Notice of ap- 

'^'^ ■'■■'■ ^ ^ po&l to bo sor\*- 

be served on the Trial Justice personally, if living and within ed on Justice, 

,.,,.„, , 1 ,, andon respond- 

the County, or on his clerk, if there be one, and upon tlie ent. agent or ut- 

attoruey for the respondent, or on the resjjondent personally, or -^ />;, jsh; i«n, 

by leaving it at his residence, with some person of suitable age iy!^"xvii./^i 

and discretion ; or in case the respondent is not a resident of 

such County, or cannot, after due diligence, be found therein, 

in the same manner on the agent, if any, who is a resident of 

such County, who appeared for the respondent on the trial ; 

and if neither the respondent nor such agent or attorney can be 

found in the County, the notice may be served on the respondent 

liy leaving it with the Clerk of the appellate Court. 

Failure to serve the Trial Justice with such notice of appeal within the five 
days is fatal, and Circuit will dismiss the api)eal, being without juri.sdiction to 
hear it.—Scott v. Pratt, 9 S. C, 82 ; Davis v. Vuttghan, 7 S. C, »4.S ; Foot v. 
Williams. IMS. C, (Wl. 

Sec. 361. When, bv reason of the death of a Trial Justice, or fiiiuk in ii.-u 

. • "^*' ' -' of service of 

his absence from the County, or any other cause, the notice of notice of uppcai. 
ajjpeal cannot be served as provided by Section '300. it may be '^"^'' -"^i^' •**'"• 
served by leaving the same with the Clerk of the County. 



turD 



1G2 CODE OF CIVIL PROCEDURE 

A. D. 1894. 

^^ "^ ^ Sec. 362. lilt' Court below shall thereupon, after ten days, 

mill how' miKif aiid witliiii thirty days after service of the notice of appeal, make 

"/)>.'. sIkt: iks<), '^ return to the appellate Court of the testimony, proceedings and 

XVII., m. judgment, and file the same in the appellate Court. The return 

may ]>c c<>rii]ielled by attachment. 

How made If Sec. 363. When a Trial Justice by whom a judgment ap- 

JusUoebeout of ii, -, iii,i ' »«>i» 

office. pealed from was rendered shall have gone out of office before a 

i87u,xiv.. SJ.8. j.g^yj.j^ is ordered, he shall, nevertheless, make a return in the 
same manner, and with the like effect, a.s if he were still in office. 
Further re- Scc. 364. If the retum be defective, the appellate Court may 
Jb ., §379. " tlii'ect a further or amended return as often as may be necessary, 
and may compel a compliance with its order by attachment. 
And tiie Court shall always be deemed open for these purposes. 
Justice dead, Sec. 366. If » Trial Justice whose judgment is appealed from 
lusane or a - gjj.jij (jjg^ become insane, or remove from the State, before hav- 
1870, XIV., 8360. jj^g made a return, the appellate Court may examine witnesses 
on oath as to the facts and circumstances of the trial or judg- 
ment, and determine the appeal as if the facts had been returned 
by the Trial Justice. If he shall have removed to another County 
within the State, the appellate Court may compel him to make 
the retum, as if he were still within the County where the judg- 
ment wa.s rendered. 
Hearing upon Sec. 366. If a retum be made, the appeal may be brought to 
" T./"ir>ti ^v ^ hearing by either party. It shall be placed upon the calendar 
498, §20. and continue thereon until finally disposed of. But if neither 

party bring it to a hearing before the end of the second term, 
the Court shall dismiss the appeal, unless it continue the same 
by special order for cause shown. At least eight days before 
the Court, the party desiring to bring on the appeal shall file the 
return and accompanying papers, if any, with the Clerk, and the 
Clerk shall thereupon enter the cause on the calendar, according 
to the date of the return, and it shall stand for trial without 
any furtlier notice. 
Appeal to be Sec. 367. The appeal shall be heard on the original papers, 
origiiiai* pawre' ^^^^ ^*' copy thereof need be funiishod for the use of the Court. 
iSiO, XIV., §382. Sec. 368. 1. Upon hearing appeal, the appellate Court shall 
Judgment on give judgment according to the justice of the case without 

appeal; new «-" « c ^ n n ^ /• i 

tjiai^. regard to technical errors and defects which do not affect the 

/b., 838:j. merits. In giving judgment, the Court may affirm or reverse 
the judgment of the Court below, in whole or in part, and as to 
any or all the parties, and for errors of law or fact. If the 



OF SOrTII CAIfol.I^A. lf;3 

A. I). IHJI. 

iipijcal is fi)Uii(lc(l oil ail error in fai-t in IIk; |irocL'C'(litiff8, not '— ^i^— ' 
atlV'ctiiiif llu! merits of tlie action, and not within tlu? knowledge 
of the Trial Jnstiee, the (lonrt may determini' the alle<^ed error 
in fact on aHidavit-!. and may, in its discreticm, iiKjiiire into and 
dcti'rmine the same ujjon examination of the witnesses. If the 
defendant failed to a])})ear before the Tiual .Jnstiee, and it is 
shown by the afTidavits served by the appellant, or otherwise, 
that manifest injnstice has been done, and he satisfactorily ex- 
enses his defanlt, the Conrt may, in its discretion, set aside or 
snspend jndgment, and order a new trial, before the same or any 
Trial Jnstiee in the same County, at such time and place, and on 
such terms, as the Court may deem proper. Where a new trial 
shall be ordered before a Trial Justice, the parties must appear 
before him according to the order of the Court, and the same 
l)roceedings must thereupon be had in the action as on the re- 
turn of a summons personally served. 

The Supreme Court -will not lend a ready ear to any objections based upon 
mere matter of form ; but will decide without regard to technical errors and 
defects.— Z)(f>-f7fn( v. West, 27 S. C, lo(J. 

And the Circuit Court will, in order to do justice when the verdict in Trial 
Justice Court is not in proper form, send the case back there for new trial. — 
Duno.sr V. Armstronrj, 2!» S. C, 200. 

The Circuit Court, on appeal, can review and reverse errors of fact in Trial 
Justice's Court. — Redfcarn v. Douglass, oiiS. C, oOl). 

But it cannot review findings of fact bj"^ Trial Justice not excepted to. — 
Burns V. Gower, M S. C, KK). 

The only mode of relief from a Trial Justice's judgment, rendered against a 
party through his excusable defaults, is by appeal to the Circuit Court. — Doty 
V. Durall, I'J S. C, 143 ; Wolfe v. E. R. Co., 25 S. C, 379 ; Lawrence v. Isear, 
27 S. C, 244. 

Such relief applies only to cases of judgment by default, and not where 
there was trial. — Miller v. Schmidt, 20 S. C, 588 ; Green v. County Commis- 
sioners, 27S. C, !>. 

Whether Circuit Court can remand a case to County Commissioners for new 
trial not detennined.— Grt'CH v. County Commissioners, 27 S. C, 9. 

2. If the issue joined, before the Trial Justice was an issue of 
law, the Court shall render judgment thereon according to the 
law of the case ; and if such judgment be against the pleadings 
of either party, an amendment of such pleading may be allowed 
on tlic same terms, and in like case, as pleailings in actions in 
the Circuit Court, and the Court may thereupon require the 
opposite party to answer such amended pleading, or join issue 
tliereon, as the case nuiy require, summarily. 

'•). If, upon an appeal in an issue of law, the Court siiould 
adjudge the pleading complained of to be valid, it shall, in like 
manner, require the opposite party summarily to answer such 
pleading, or join issue thereon, as the case may require. 



164 CODE OF CIVIL PROCEDURE 

A. D. 1891. " 

^^"■""v-^"^ 4. Every issue of fact so joinod or Ijrou^ht upon un ap{)eal 

shall be tried in the manner as j)rovided in Section 3r)8. 
~i878 xvTliOir ^- '^^^^ Court shall have the same power over its own dett-rmi- 
**^' nations, and shall render judgment thereon in the same manner, 

as the Circuit Court iu actions pending therein, without trial by 
jury, aud may allow either party to amend his pleadings upon 
such terms as shall be just ; and in any appeal, either party may, 
at any time before the trial, serve upon the opposite party an 
offer, in writing, to allow judgment to be taken against him for 
the sum or property, or to the effect in such offer specified, and 
with or without costs, as said offer shall specify. If the party 
receiving such offer accept the same, and give notice thereof, in 
writing, within ten days, he may file the return and offer, with 
an affidavit of service of notice of acceptance thereof, and judg- 
ment shall be entered thereon according to said offer. If the 
notice of acceptance be not given, the offer is to be deemed with- 
drawn, and cannot be given in evidence. And if the party to 
whom such offer is made fail to obtain a judgment more favor- 
able to him than that specified in said offer, then he shall not 
recover costs, but must pay the other party's costs from the date 
of the service of the offer. 

6. Either party may move for a new trial in said Court on a 
case or exceptions, or otherwise, and such motion may be made 
before or after judgment has been entered ; and the provisions 
of this Code of Procedure in relation to the proceedings, excep- 
tions to the decisions of the Court, making and settling cases and 
exceptions, motions for new trials, and making up the judgment 
roll in the Circuit Court, are hereby made applicable to all ap- 
peals brought up for trial, as in this Chapter provided. 
Judgment roll. Sec. 369. To every judgment upon an appeal there shall be 
1870, XIV., §384. annexed the return on which it was heard, the notice of appeal, 
with any offer, decision of the Court, exceptions, case, aud all 
orders and papers in any way involving the merits and neces- 
sarily affecting the judgment, w'hich shall be filed with the Clerk 
of the Court, and shall constitute the judgment roll. 
Costs, how Sec. 370. If the judgment be affirmed, costs shall be awarded 
m o XIV 88 85 ^^ ^^^^ respondent. If it be reversed, costs shall be awarded to 
the appellant. If it be affirmed in part, the costs, or such part 
as to the Court shall seem just, may be awarded to either party. 
Restitution.^ Sgc. 371. If the judgment below, or any part thereof, be 
7h., fi386. prji(j (yy collectcd, and the judgment be afterwards reversed, the 
appellate Court shall order the amount paid or collected to 
be restored, with interest from the time of such payment or col- 



OF SOUTH CAROLINA. 165 

A. D. IKftl. 



lection. The order iiiiiy 1)0 <)l)t!iineil on proof of the fuels, made ""^-^"—^ 
at or after the h^'arill<,^ npoJi a jirevioiis notice of six days; and 
if the order shall i)e made before the judgment is entered, the 
aiiKUiiit may tie included in the judgment. 

Sec. 372. If. upon an appeal, a recovery be had bv one settinjf oir 
party, and costs l)e awarde<i to the other, the apj)ellate (^'onrt ••o'- 
shall set off the one against the other, and rend(!r judgment for ^''•*'^'- 
the balancc- 

Sec. 373. Costs shall be allowed to the prevailing ]»arty. in tiic o.«tH on 
judgments rendered on appeal, in all cases, with the following "/^^'s^g-isfa; 
exceptions and limitations : In the notice of appeal, the appel- xv., 50i. gso. 
hint shall state in what particular, or particulars, he claims the 
judgment should have been more favorable to him. If he claims 
that the amount of judgment is less favorable to him than it 
should have been, he shall state what should have been its 
amount. Within fifteen days after the service of the notice of 
appeal, the respondent may serve upon the appellant and Trial 
Justice an offer, in writing, to allow the judgment to be cor- 
rected in any of the jiarticulars mentioned in the notice of ap- 
peal. The appellant may thereupon, and within five days there- 
after, file with the Trial Justice a written acceptance of such 
offer, Avho shall thereupon make a minute thereof in his docket, 
and correct such judgment accordingly, and the same, so cor- 
rected, shall stand as his judgment and be enforced accordingly ; 
and any execution which has been issued upon the judgment 
appealed from shall be amended by the Trial Justice to corre- 
spond with the amended judgment. If such offer be not made, 
and the judgment in the appellate Court be more favorable to 
the appellant than the judgment of the Court below, or if such 
offer be made and not accepted, and the judgment in the appel- 
late Court be more favorable to the appellant than the offer of 
the respondent, the appellant shall recover costs : Provided, 
lioirever. That the appellant shall not recover costs unless the 
judgment appealed from shall be reversed on such appeal, or be 
made more favorable to him to the amount of at least ten dollars. 
If the offer be made and accepted by the appellant, the appellant 
shall recover all his disbursements on appeal and all his costs in 
the Court below. But the appellant shall not recover costs ex- 
cept as provided in this Chapter, The respondent shall be enti- 
tled to recover costs where the appellant is not. Whenever costs 
are awarded to the appellant, and when the judgment in the suit 
before the Court below was against such ajipcllant, he shall 



IGO CODE OF CIVIL PROCEDURE 

A. D. KS'.U. 

^■^r-^-^ further be allowed to t;ix tlie costs incurred by bini wbirh he 
would have been entitled to recover in case the judgment below 
had been rendered in his favor. If, upon an appeal, a recovery 
for any debt or damages be had by one party, and costs be 
awarded to the other party, the Court shall set off such costs 
against such debt or damages, and render judgment for the bal- 
ance. The following fees and costs, and no others, except fees 
of officers, disbursements, and witnesses' fees, shall be allowed, 
on ajjpeal, to the party entitled to costs, as herein provided, 
when the new trial is in the Circuit Court : For the proceedings 
before trial, three dollars ; for trial of the cause, five dollars ; 
Avhen the amount sued for is under twenty dollars, only two dol- 
lars and fifty cents. If the judgment appealed from be reversed 
"1873, XV., 50-2, in part, and affirmed as to the residue, the amount of costs allowed 
8^ ; xvn., 29,, ^^ either party shall be such sum as the appellate Court may 
award, not exceeding five dollars. If the appeal be dismissed 

~~rb^Y. ^0^ want of prosecution, as provided by Section 3GC, no costs 

shall be allowed to either party. In every appeal the Trial Jus- 
tice before whom the judgment appealed from was rendered 
shall receive sixty cents for liis return. If the judgment be re- 
versed for an error of fact in the proceedings, not affecting the 
merits, costs shall be in the discretion of the Court. If, in the 
notice of appeal, the appellant shall not state in what particular, 
or particulars, he claims the judgment should have been more 
favorable to him, he shall not be entitled to costs unless the 
judgment appealed from shall be wholly reversed. 

"Where a party appeals from judgment of Trial Justice without stating in 
what particular or particulars the judgment should have been more favorable 
to him, he will not be entitled to costs unless the judgment be wholly re- 
versed.— TFa/^ V. Davis, 1!) S. C, 455. And where appellant is not entitled to 
costs the respondent is.— lb. 

Where appellant refuses to accept offer of respondent to allow judgment for 
certain amount, and finally obtains judgment for less than defendants offer, 
he is liable for all costs subsequent to the oSev.— WiUiford v. Oadsden, 27 
S. C, 87. 



OF SOUTH CAROLINA. 



TITLE Xir. 

OF THE MISCELLANEOUS PROCEEDINGS IN ( IVIL 
ACTIONS, AM) (iENERAL PROVISIONS. 



1G7 

A. D. IWM. 



CiiAPTF.u T. — SuhiiiiUiiKj a Contravcrsii witliout Action. 

CiiAi'TKR 11. — Proceedings against Joint iJef/tors. 

Ch.vptkk III. — Confession of a Judgment without Action. 

Chaftkr IV. — Offer of the Defendants to Coin promise the 

Whole or a Part of the Action. 

Chapter V. — Admission or Inspection of Writings. 

Chapter VI. — E.ramination of Parties. 

Chapter VII. — E.ramination of Witnesses. 
Chapter VIII. — Motions and Orders. 

Chapter XI. — Entitling Affidavits. 

Chapter X. — Computation of Time. 

Chapter XI. — Notices, and Filing and Service of Papers. 

Chapter XII. — Miscellaneous Provisions. 



CHAPTER I. 



Submitting a Controversy Without Action. 



Skc. 



a<"4. Controversy, how submitted without 

action. 
375. Judgment, how enforced. 



SEC. 



876. Judgment, how enforced or ap- 
pealed from. 



S action 374. Parties to a matter in dispute which might controversy, 
be the subject of a civil action may, without action, agree ujion luu,out"m"tK"n.** 
a case containing the facts upon which the controversy depeiuls, i'^-'- xiv. 8:is-o. 
and present a submission of the same to any Court which would 
have jnrisdicticm if an action had been brouglit. But it must 
appear by affidavit that the controversy is real, and the proceed- 
ings in good faith, to determine the rights of the parties. The 
Court sliall thereupon hear and determiiu^ the case, and render 
judgment thereon, as if an action were depending. 

Cases submitted to Supreme CJourt.—StmjJsou v. Wilhtrd, 11 S. C. I'.M ; 
Macoy v. Curtis, 14 S. C, '.MM. 

The Court of Common Pleas refused to entertain a case for prohibition 
under this Section hecauMo Section 4.">2, Code, provides that this Section shall 
not affect the procedure ill cases of t)Hinihi)nus and prohibition.— y/ic .Voti^A 
Curulina Sucivtij v. Uurnry, 3 S. C, .51. 



k 




CODE OF CIVIL PROCEDURE 



Sec. 375. Jiulgment shall be entered, as in other cases, but 
eoionnBd? witliout cust for uny i)rocee(ling [)ri()r to the trial. 



The case, the 
Bubniission and a copy of the judgment shall constitute the judg- 
ment roll. 
'Judgment, how Sgc. 376. The judgment may Ije enforced in the same man- 

peaiert from. ncr a.s if it luid been rendered in an action, and shall be subject 

7f>.. 83'ji. ^Q appeal in like manner. 



CHAPTER II. 



Proceedings Against Joint Debtors. 



Sec. 



8(7. Parties not summoned In action on 
joint contract may be summoned af- 
ter judjfment. 

378. Form of summons. 

379. Summons to be accompanied by affi- 
davit of amount due. 



Sec. 

380. Party summoned may answer and de- 
fend. 

381. Subsequent pleadings and proceed- 
ings the same as in an action. 

383. Answer and reply to be verlfled as In 
an action. 



Parties not Section 377. When a judgment shall be recovered against 

acuon^on^join" One or more of several persons jointly indebted upon a contract, 

b°e^'sunimoued bv proceeding as provided in Section 157, those who were not 

il^B^'iv^'l3y>^ originally summoned to answer the complaint may be summoned 

to show cause why they should not be bound by the judgment, 

in the same manner as if the}' had been originally summoned. 

Judgment was obtained against a copartnership and one of the firm. Sev- 
eral years afterwards the other copartner, having returned to the State, was 
summoned to show cause why he should not be bound Viy the judgment. 
Judgment against him was entered for the sum of the origimil judgment, with 
interest to date. This was error, as the judgment against him should have 
been that he "be bound by" the original judgment, and that plaintiff have 
leave to issue execution thereon. Form of such judgment suggested.— .IdicArcs 
V. Allison, 21 S. C, 245. 

Form of sum- Sec. 378. The summons provided in the last Section shall 

mons. ijg subscribed by the judgment creditor, his reijresentative or 

attorney, shall describe the judgment, and require the person 

summoned to show cause within twenty days after the service of 

the summons ; and shall be served in like manner as the original 

summons. 

summonstohe SbC. 379. The summons shall be accomjianied by an affidavit 

a^ifld aT 'u o f of the person subscribing it that the judgment has not been 

^lri"395^^ — satisfied, to his knowledge, or information and belief, and shall 

specify the amount due thereon. 



Jb., §394. 



OF SOUTJI CAliULlXA. 1G9 

A. D. 1H94. 

Sec. 380. ITpon such summons any party summoned muy ' ' 

.,..,,. •/• 1 J.1 • 1 • i.1 • 1 i Party Hiininion- 

Hiiswrr witliiii the time specinea therein, denying the judgmental may uh.hw.t 
Dp setting up any defense thereto whicli may have arisen suhsc- lu.^imL 
quontly to such judgment; and in addition tliereto, if the party 
1)0 proceeded against according to Section 377, he may make any 
defense whicli he might have made to the action if the summons 
had been served on him at the time when the same was originally 
commenced and such defense had been then interposed to such 
action. 

In answer to .sncli summons the Statute of Limitations cannot lie pleaded to 
the chiim upon which the judfoncnt had been entered, if not barred when the 
action commenced. — Adickes v. Allison, 21 S. C, 245. 

Sec. 381. The party issuing the summons may demur or suiwequent 
rei)ly to the answer, and the party summoned may demur to the pr' "U"u)gM the 
reply ; and the issues may be tried and judgment may be given m't/.m."'^ 
in the same manner as in an action and enforced by execution ; J''-8-^''~- 
(ir the application of the property charged to the payment of the 
judgment may be compelled by attachment if necessary. 

Sec. 382. The answer and reply shall be verified in the like Answer ana 
cases and manner, and be subject to the same rules, as the fle<i us'in an ac- 
answer and reply in an action. ^fiiTJm. — 



CHAPTER III. 

Confession of Judgment Without Action. 



Sec. 
383. Judgment may be cofessetl for debt 
due or for contingent liability. 



Sec. 
3K1. statement In writing and fonn thereof. 
3So. Judgment and execution. 



Section 383 A iudgment by confession may be entered Judgment may 

►J cv.- null www. ,1 ,-, J J lMM-..nfe.ss.-d for 

witliDiit, ai'tiiiu, either for money due or to become due, or to debt duf or for 

,.,.,., 1 1 II. J- 1 contingent lla- 

secure any person against contingent liability on behalt of the biiity. 
defendant, or both, in the manner prescribed in this Chapter. it>70, xi\ ., .•««). 

A confession of judj^ment may be made by a cbent to his attorney, if made 
with entire fairness and full knowledge. — irisc v. Hdrdin, n S. C, J5:.'."j. 

A judf^ment by confession has all the characteristics of an ordiiniry judj;- 
ment and cannot be attacked collaterally ; the remedy is by application to the 
Court in which the confession is entered to vacate or modify it, if it is insufli- 
cient in form or for any reason vok\. —Snuthmi Co. v. Thrir, 5 8. C.,5. A con- 
fession of .iudgment against it, by the President of a corpm-ation, is invalid, it 
not appearing that he had authority to make it, or that it had been conlirined 
by ac(iuie.scence. — //'. 

A confession of judgment (Altered without action in the Clerk's ollice during 
vacation is valid. Sei'tion -(')7. subdivision I, does not couUict with thia Sec- 
tiun. — Ifci/if/cs v. Cash, 15 S. C, 44. 



170 CODE OF CIVIL PROCEDURE 

A. D. 180J. 

^— — w"^^ There is uo law which requires a confossion of judgment to bo obtained or 
read in open Court.— 76. 

A confession made with view to protect debtor's proix-rty against debts 
present or which he expects to contract may be set aside for fraud, by the 
subsequent creditors. — Kohn v. Meyer, lit S. C, I'M. 

The Clerk of Court may take a confession of judgment in his own favor.— 
Trimmier v. Winamith, 23 S. C, 449. 

Statement In SeC. 384. A statement in writing must be made and si<:ned 
fLnn then»f?°'* by the defendant, and verified by his oath, to the following effect : 
jb., 3400. 1. It must state the amount for which judgment may be en- 

tered, and authorize the entry of judgment therefor. 

2. If it be for money due, or to become due, it must state 
concisely the facts out of which it arose, and must show that the 
sum confessed therefor is justly due, or to become due. 

3. If it be for the purpose of securing the plaintiff against a 
contingent liability, it must state concisely the facts constitutinir 
the liability, and must show that the sum confessed therefor does 
not exceed the same. 

A confession is not void merely because the value of the consideration is less 
than the amount of the confession. — Wise v. Hardin, o S. C, •i25. 

A confession for an amount less than what is actually due contains a suffi- 
cient statement. — TVeinr/es v. Cash, 15 S. C, 44. 

A description of the debt without a statement of its consideration and facts 
out of which it arose is insufficient. — Ex Parte Carroll, l~ S. C, 44«i ; Kohn v. 
Meyer. 19 S. C, 190. A confession insufficient in statement is not merely 
irregtilar but is invalid. — Ex Pai-te Carroll, ITS. C, 440 ; Kohn v. Meyer, 19 S. 
C, 190. And cannot be corrected by amendment. — £j: Parte Carroll. 17 S. C. 
44<3. And should be set aside on motion, as proper proceeding. — Jb. And 
such motion may be made at any time within five years.— 76. 

When statement is false or so grossly inaccurate as to mislead inquirers, it 
is void as to other creditors. — Kohn v. Meyer, 19 S. C, 190. 

Judgment and Sec. 385. The statement may be filed with the Clerk of tlu- 
execution. Court uf Common Pleas, or with a Trial Justice if the amount 
xvni.. oM. for which judgment is confessed shall not exceed one hundred 
dollars, who shall enter a judgment endorsed upon the statement 
for the amount confessed, with five dollars, plaintiff's attorney's 
costs, when the confession is entered by an attorney, and the 
usual fees provided by law to the Clerk of the Court of Common 
Pleas or Trial Justice, as the case may be, for entering up judg- 
ments and issuing executions in any case, together with any neces- 
sary disbursements of the plaintiff. The statement and affidavit, 
with the judgment endorsed, shall thereupon become the judg- 
ment roll. Executions may be issued and enforced thereon, in 
the same manner as upon judgments in other cases in such 
Courts. When the debt for which the judgment is entered is 
not all due, or is payable in installments, and the installments 



OF SOUTH UAROLliNA. 171 

A.D. IWM. 

arc not all <liu\ the execution may issue iipoii siuli jiid^mciit for ""■■ — ■'^ ' 

the collection of such installments as liave heconie due, and shall 
he in the usual form, hut shall have endorsed thereon, hy the 
attorney or person issuing the same, a direction to the Sheriff to 
collect the amount due on such judirment, witli interest and 
costs, whicli amount shall he stated, with interest thereon, and 
the costs of said jiulgment. Notwitlistaiuling the issue and col- 
lection of such execution, the judgment shall remain as security 
for the installments thereafter to heeome due ; and whenever any 
further installments heeome due, execution may, in like manner, 
be issued for the collection and enforcement of tlie same. 

Debtor confessing judgment to Clerk himself, his creditor cannot object that 
the Clerk had no right to consider his apjilic-ation and statement and enroll 
the judgment. — Trimmiev v. Winsmith, 'S-iii. C, 44'.). 



CHAPTER IV 
Offer of the Defei 

r 



Offer of the Defendant to Compromise the Whole or 
a Part of the Action. 



Sec. 



mt. Otter of compromise. 
387. Defendant may offer to liquidate 
damages. 



Sec. 



388. Effect of acceptance or refusal of 
offer. 



P Section 386. I'lic defendant may, at any time before the offer of com- 
trial or verdict, serve upon the plaintiff an offer in writing to J'^tVxrv um- 
allow judgment to be taken against him for the sum or property, g|y^' ^^■' ^■^' 
or to the effect therein specified, with costs. If the phiintiff 
accept the offer, and give notice thereof in writing within ten 
days, he may file the summons, complaint and otter, with an 
affidavit of notice of acceptance, and the Court shall direct 
judgment to be entered thereon accordingly. If the notice of 
acceptance be not given, the offer is to be deemed withdrawn, 
and cannot be given in evidence ; and if the plaintiff fail to ob- 
tain a more favoral)le judgment, lie cannot recover costs, but 
must pay the defendant's costs from the time of the offer ; and 
in case the defendant shall set up a counter-claim in his answer 
to an amount greater than the plaintilT's claim, or sufficient to 
reduce the plaintilT's recovery below lifty dollars, then the plain- 
tiff may serve upon the defendant an offer in writing to allow 
judgment to be taken against him for the amount specified, 
or to allow said counter-claim to the amount si)ecilieil, with 



172 CODE OF CIVIL I'lfoCKDCllK 

A. D. 18«1. 

" — V ' costs. If the defemlant accept the offer, and give notice thereof 

ill writing within ten days, he may enter judgment liS above for 
thi' amount specified, if the offer entitled him to judgment, or 
the amount specified in said offer shall be allowed him in the 
trial of the action. If the notice of acceptance be not given, the 
offer is to l)e deemed withdrawn, and cannot be given in evi- 
dence ; and if the defendant fail to recover a more favorable 
judgment, or to establish his counter-claim for a greater amount 
than is specified in said otter, he cannot recover costs, but must 
pay the plaintiff's costs from the time of the offer. 
Defendant mav Scc. 387. In an action arising on contract, the defendant 
afeVmag^'^'^' may, with his answer, serve upon the plaintiff an ofier in writing 
' ih., g 403. ' |;hat if he fail in his defense the damages be assessed at a 
specified sum ; and if the plaintiff signify his acceptance thereof 
in writing, before trial, and on the trial have a verdict, the dam- 
ages shall be assessed, accordingly. 
Effect of ac- Sec. 388. If the plaintiff do not accept the otter, he shall 
ffiofVen'l" prove his damages as if the offer had not been made, and shall 
lb., g4w. not be permitted to give it in evidence. And if the damages 
assessed in his favor shall not exceed the sum mentioned in the 
offer, the defendant shall recover his costs incurred in conse- 
quence of any necessary preparation or defense in respect to the 
question of damages. 



CHAPTER V. 
Admission or Inspection of Writings. 

Skc. 380. Inspection and copy of books, papers, ic, how obtained. 

inspection and Sectloil 389. Either party may exhibit to the other, or to 
^^^rs^&Sow his attorney, at any time before the trial, any paper material to 
9btoinedJ^ ^^^g action, and request an admission \u writing of its genuine- 

1870, Xrv., S40o. ' ■. • , ,. •! J ■ xi 1 

ness. If the adverse party, or his attorney, tail to give the ad- 
mission, within four days after the request, and if the party 
exhibiting the paper be afterwards put to expense in order to 
prove its genuineness, and the same be finally proved or admitted 
on the trial, such expense shall be paid by the party refusing the 
admission, unless it appear to the satisfaction of the Court that 
there were good reasons for the refussil. The Court before which 
an action is pending, or a Judge or Justice thereof, may. in their 
discretion, and ui)on duo notice, order either party to give to the 



OF SOUTH CAKOLINA. 



other, witliiii a spccilicd (iiiii'. an inspection and copy, or j)er- 
Miissioii to take a copy, of any books, jiapcrs and docurnentH in 
his possession or under his control, containing evidence rchiting 
to the merits of the action or tlie defense therein. If compliance 
with the order I)e refused, tlie Court, on motion, may exclude 
the j)aper from being given in evidence, or punisii the partv 
refusing, or Ixtth. 

The Master is a s^in-cial tribunal and lias no power as a Court to rctjuiro tlie 
defendants to produce a deed in their possession, no such power having Ijeen 
conferred upon him. — (Vf/7fr v. Spi'iice, 24 H. C, 550. 

Doubted wh(»ther a Circuit Judge or Com-t authorized to do so.— Ih. 




CHAPTER VI. 

Examination of Parties. 



SF.r. Sec. 

3fln. Action for discovery abolished. 396. Testimony of a party not responsive 

8!tl. A party may examine his adversary to the inquiries may be rebutted by 

as a witness. the oath of the party callinpr lilm. 

802. Sucli examination also allowed be- 307. Persons for whom action Is brought 

fore trial. Pmrccdinps therefor. or defended may be examined. 

30.3. Party, how coinpelled to attend. 398. Examination of co-plaintiff or co- 

3114. Testimony of party may be rebutted. defendant. 
395. Effect of refusal to testify. 

Section 390. No action to obtain discovery under oath in Action for dis- 
aid of the prosecution or defense of another action shall be ^y*"^ * 
allowed, nor shall any examination of a party l)e had on behalf -T'^- 84nc. 
of the adverse ])arty, except in the manner prescribed by this 
Chapter. 

Sec. 391. A ])arty to an action may be examined as a wit- a party may 
ness. at the instance of the adverse party, or of any one of sev- ven!ary'as'a'\vit- 
eral adverse parties, and for that purpose may be compelled, in "^^^-.-^^ — 
the same manner and suliject to the same rules of examijiation 
as any other witness, to testify, either at the trial, or condition- 
ally, or upon coniniission. 

Party exainine<l on his own behalf is entitled to the same means of refresh- 
ing his memory a.s are allowed to other witnesses. — Hull v. Lamhuon, 5 S. C, 

■-"^5. 

Sec. 392. 1 he examination, instead of being had at the trial, sm-ii examina- 
as provided in the last Section, niav l)e had at any time before »hi iH-fore trial ; 

. • 1 , ,1 ,. X' i.1 i 1 • • -J 1 J- ' T 1 ,pmcecdln|{8 

trial, at tite o})tion of the jjarty claiming it, l)elore a .Judge of uu.n'for. 

the Court, on a ])revious notice to the party to be examined, and i>^<J, xiv., jioe. 

any other adverse party, of at least five days, unless, for good 



174 CODE OF CIVIL PROCEDURE 

A. D. 18W. ' 

""■" — V ' cause shown, the Judge order otherwise. Hut the party to be 

examined shall not be compelled to attend in any other County 
than that of his residence, or where he may be served with a 
summons for his attendance. 

Party, how Sec. 393. Ihc party to be examined, as in the last Section 
tead ^ provided, may be compelled to attend in the same manner as a 

/b., §409. witness wlio is to be examined conditionally; and the examina- 
tion shall be taken and filed by the Judge in like manner, and 
may be read by either party on the trial. 

Testimony of Sec. 394. The examination of the party thus taken may be 

party may be i .. i i •, . .• 

rebutted. rebutted by adverse testimony. 

//>., §410. Sec. 395. If 11 party refuse to attend and testifv, as in the 

Effect o f r e- . " 

fusai to testify, last four Sections provided, he may be punished as for a con- 

j/)., 8411. tempt, and his complaint, answer or reply may be stricken out. 

Testimony of Sec. 396. A party examined by an adverse party, as in this 

sponsive°U) t'he Chapter provided, may be examined on his own behalf, subject 

t^** rebifttM *by to the Same rules of examination as other witnesses. But if he 

ifa rTy^ oiu^ng testify to any new matter, not responsive to the inquiries put to 

-*"^— g^ljg — him by the adverse party, or necessary to explain or qualify his 

answers thereto, or discharge Avhen his answers would charge 

himself, such adverse party may offer himself as a witness on his 

own behalf in respect to such new matter, subject to the same 

rules of examination as other witnesses, and shall be so received. 

Persons for Sec. 397. A person for whose immediate benefit the action 

whom action is. 

broufiht or de- is prosecuted or defended, though not a party to the action, may 

fended may be^ . . • -i i u- 4. * *i, 

examin ed. be examined as a witness m the same manner and subject to the 

J/)., §413. game rules of examination as if he were named as a party. 
Examinauon Scc. 398. A party may be examined on behalf of his co- 
co-defendant^ plaintiff, or of a co-defendant, as to any matter in which he is 
ih., §414, jjq|. jointly interested or liable with such co-plaintiff or co-defend- 
ant, and as to which a separate and not joint verdict or judg- 
ment can be rendered. And he may be compelled to attend in 
the same manner as at the instance of an adverse party ; but the 
examination thus taken shall not be used in the behalf of the 
party examined. And whenever, in the case mentioned in Sec- 
tions 391 and 392, one of the several plaintiffs or defendants who 
are joint contractors, or are united in interest, is examined by 
the adverse party, the other of such plaintiffs or defendants may 
offer himself as a witness to the same cause of action or defense, 
and shall be so received. 



OF SOUTH CAKOrJNTA. ir:> 

A. I). IV.M. 

CHAPTER VII. — • — ' 

Examination of Witnesses. 

skc. skc. 

M'.iii. IiittTcst not to fxfliulc a wlliiiwH. KKI. Parties to actinns and Hp«>r'lnl pro- 

(■('fdlnifs iriay In- \vftiic.H.Mc« on tlu'lr 
own iH'lialf except in certuln caauH. 

Section 399. No person ofTered as a witness shall be ex- inuri-sft not to 
cliidt'd hy ivasoii oi' his interest in the event of the action. oosh" ** " ^ * 

Sec. 400. A ])arty to an action or special proceeding in any i»70. xiv., mm. 
and all Courts, and before any and all officers and persons acting Parties to ac- 

' J _ ^ t) tlonsanilHpt.Tial 

iudicially, may be examined as a witness on his own behalf, or in procef-dirurs 

•''''' 'may be w I t- 

behalf of any other inirtv, conditionally, on commission, and ni-^^is on thfir 

. -^ t .. .7 ' „\vn iwlialf, ex- 

upon the trial or hearing in the case, in the same manner and ''-i" "> cerx&m 

^ . " . . , cases. 

subject to the same rules of examination as any other witness : jb., 64i5. 
Provldeih Iwfcever, That no party to the action or proceeding, 
nor any person who has a legal or equitable interest which ma}' 
be affected by the event of the action or proceeding, nor any 
person who, previous to such examination, has had such an 
interest, however the same may have been transferred to, or come 
to, the party to the action or proceeding, nor any assignor of any- 
thing in controversy in the action, shall be examined in regard 
to any transaction or communication between such witness and a 
person at the time of such examination deceased, insane, or 
lunatic, as a witness against a party then prosecuting or defend- 
ing the action as executor, administrator, heir-at-law, next of 
kin, assignee, legatee, devisee, or survivor of such deceased per- 
son, or as assignee or committee of such insane person or lunatic, 
when such examination, or any judgment or determination in 
such action or proceeding, can in any manner affect the interest 
of such witness or the interest previously owned or represented 
by him. But when such executor, administrator, lieir-at-law, 
next of kin, assignee, legatee, devisee, survivor, or committee, 
shall be examined (m liis own behalf in regard to such transac- 
tion or communication, or the testimony of such deceased or 
insane person or lunatic, in regard to such transaction or com- 
munication, (however the same may liave been perpetuated or 
made competent,) shall be given in evidence on the trial or hear- 
ing in behalf of such executor, administrator, heir-at-hiw, next 
of kin, assignee, legatee, devisee, survivor, or committee, then 
all other persons not otherwise rendered incompetent shall l)e 
made competent witnesses in relation to such transaction or com- 



KC CODE OF CIVIL IMfoCKDl'IfK 

A. I). IWM. 

'-■'~~~'^~^ inuiiiciitiiMi on said trial or hearing. Ndthing contained in Sec- 
tion 8 of this Code of Procedure shall he held or construed to 
affect or restrain the operation of this Section. 

1. In any trial or inquiry in any suit, action or jiroceeding in 
any Court, or before any person having, by law, or consent of 
parties, authority to examine witnesses or hear evidence, the 
husband or wife of any party thereto, or of any person in whose 
behalf any such suit, action or proceeding is brought, prose- 
cuted, opposed, or defended, shall, except as hereinafter stated, 
be competent and compellable to give evidence, the same as any 
other witness, on belialf of any party to such suit, action or pro-' 
ceeding. 

2. No husband or wife shall be compe]lal)le to disclose any 
confidential communication made by one to tlie other during 
their marriage. 

This Section is in restriction of the general right conferred by the preceding 
Section and cannot be extended by construction beyond its clearly expressed 
design— Gitpri/ v. Kinslcr, H S. C, 42:^ ; Jones v. Phmkett, !» S. C, 3it2. 

Only persons included in the particular relations therein referred to can be 
considered as embraced in the proviso or exceptions ; others not named, 
though within the mischief intended to be prevented, cannot be included.— 
Chier}/ V. Kinslcr, :i S. C, 423 ; Jones v. Plunkett, '.» S. C, 3!t2 ; Colvin v. Fhil- 
Iqis, 2.5 S. C, 228; Brown v. Moore, 20 S. C, 1(50 ; Huff v. Latimer, :« S. C, 
2.5.5. But the Section must be construed by the intent appearing on its face, 
and whether the proviso should be a])plied must be determined by the issue 
raised through the pleadings and not by the form of the action. — Boykin v. 
Watts, OS. C, 70. 

These provisions do not apply where the witness is not a party to the 
action, has no interest in the event of it, and cannot be affected by it. — Boll man 
v. Bollman, OS. C, 29 : Twittii v. Houser, 7 S. C, 1.53 ; Bhtkehj v. Frazier, U 
S. C, 122 ; Shaw v. Cunnin(jham , 10 S. C, Vh-A. 

A person is not excluded as a witness whose liability' on a note will in no 
way be increased or diminished by the event of the suit. — Twiffy v. Houser, 7 
S. C, 1.53. 

It is the possibility that ' ' any pei^sou who has a legal or equitable interest 
which may be affected by the event of the action " that will exclude him Jis a 
witness. — Boe v. Harrison, !t S. C, 279. 

If the defendant, though not named as executor, defends for the benefit of 
the estate of his testator, whose declarations the plaintiff is offered to prove, 
he is protected against .such testimony. — Boykin v. Watts, S. C, 70. 

A party as witness is incompetent to testify as to communication with 
deceased perscm against his administrator where the judgment irauhl affect hia 
interest. — Earle v. Harrison, IIS S. C.,321t. 

A witness in interest is not incompetent to testify to communications and 
transjictions had between a person decea.sed and some third per.son.— 7?o«' v. 
Harrison, '.i S. C.,'27U : Huyhey v. Eichelberger, 11 S. C. 30; Shaw v. Cun- 
ninffham, 10 S. C, 031 ; MrLanrin v. Wilson, Hi S. C, 402 : Boltinson v. Bobin- 
son, 20 S. C, .507 ; Kennentore v. Kennemore, 20 S. C, 251 ; Moore v. Trimmier, 
32 S. C, .511 ; Briee v. .Vi7/«>r, ;}.5 S. C, .5:17. 

Nor to testify against his own interest, though his testimony should affect 
the rights of others.— 67i('// v. Boyd, 32 S. C, 539. 



op SOUTH CAROf,IXA. 117 



The interest affected nieann the interest promotofl ; parties are competent to 
testify aj^ainst their interest. lini/Liu v. Watts, HH. C, in \ l{nhinson v. liot)- 
inson, 'M S. C, 5ti7 ; Mn{f<ill v. Ilnnlin, 22 S. C, 2r, ; arijjin v. Karle, M 
S. ('., 24li. 

A factor in Ijis acticjn apiinst executor of owners of cotton for reclama- 
tion cannot testify to conversation had with h\m. —lilaki-ly v. Frazier, 11 
S. C. 122. 

Where assifniee of sealed note sues, the defendant may prove the loss of the 
receipt ^iven him by assignor, since deceased, but he cannot testify toc(jntent8 
of it.—SI,inilrriil(ir v. I'owrll, II S. (!., 'A'.). 

The intnnlnction of testimony other than that of the representative of the 
deceased, as to certain transactions or communications of the deceased, does 
not render a imvty in interest competent to testify as to the same matter.— 
Hricc V. Humilfoiu 1- S. C, ;{2. 

A legatee under lost will, in attempting to set up same, cannot testify to com- 
munications or transactions with teiitator.—Kauskrtf v. Keitf, 22 S. C, l>i7. 

In proceeding to revive execution by administrator of the assignee the 
defendant cannot testify that he had placed two notes in hands of the 
deceasetl assignee to collect. — Monts v. Koon, 21 S. C, 110. 

A ward, in action for account brought by him after majority, against the 
executor of his deceased guardian, cannot testify to communications made to 
him by the deceased upon the matter of compromise fonnerly made between 
them, as to the value of the estate, although the retm-ns of the guardian had 
been introduced in evidence by the executor.— Oicoks v. Watts, 24 S. C, 7(5. 

Where plaintiff sues administrator of deceased on account for services ren- 
dered the deceased, he cannot testify that the accoimt is con-ect, as that is, in 
substance and effect, testifying that the services had been rendered under con- 
tract or upon i-equest, and related to a contract with deceased.— -Wo i/cZ v. Cau- 
then, 2.S S. C, 72. 

A surviving executor may not testify to communications or transactions 
between himself and the deceased executor affecting their liability to each 
other for the administration of their testator's estate. — Williams v. Muiver, 29 
S. C.,:«2. 

In action by creditor to set aside a judgment confessed by father, since 
deceased, to defendant, his daughter, and to set aside sale ot land thereunder, 
the plaintiff could not prove communications had by him with the deceased. 
— Martin v. Ada)iis, 2'.l S. C, 597. 

In action by survnvor of tii-m against devisee of deceased partner to recover 
his share of certain lauds held in deceased partner's name, but being really 
partnei-shij) property, the plaintiff' was incompetent to prove any commimica- 
tions or transactions between the deceased and himself.— ./on«'.s v. Smith, 'M 
S. C, 527. 

When defendant, as administrator of deceased son, being sued on note by 
the executor of the deceased father, testified as to the facts of the conversa- 
tions with the testator, relative to the note, without giving any detivil thereof, 
the plaintiff could not, in reply, pn)ve the substance of conversation witli his 
testator aV)out the note.- Ji'irharils v. Mnnro, -M) S. C, 284. 

A tnistee is not the representative of his deceased predecessor, and the 
ol)iigor of bond, given to the latter, can prove imyment to him in the action 
thereon by the former. —^>i«-/i/ v. Kiiislrr, .'5 S. C.,42:{. 

In an action to recover land, brought against one, who claimed as purchaser 
under A, who had purchiused from C, deceased, A waa a competent witness 
to prove C's declarations as to the title to the land.— ./oafs v. Flunkett, 9 
S. u., :m. 

A remote alienee of one deceased is within the mischief intended to be reme- 
died by the exception, but she is not within its express terms, and can testify 



178 CODE OP CIVIL PROCEDURE 

A. D. 18(M. '" — — ■ - . 

'^— ^,— — ^ us to communications and transactions between herself and the deceased as to 
the land she seeks to recover in the action.— Can ^♦•j/ v. Wfiifttikfr, 14 S. C, 
5->7 : hrice v. Miller, .« S. C. M7. 

Plaintiff in action uffsiinst a town can testify as to the transactions Ijetween 
himself and a former Intendant of the town, acting for the coriJoration, but 
at the time of trial deceased. — C'o/»'m«n v. Chester, 14 S. C, 28<5. 

In action to recover share of crop made by plaintiff on defendant's farm 
revived after defendjint's death against his execuUjrs, the plaintiff could testify 
as to his own acts in connection with the subject matter, in no way attempted 
to be connected with the deceased.— /^ooA-/t«'nr^ v. Dean. 21 S. C, ')'J~. 

In action by executrix, an attorney can testify to communications between 
himself as attorney for the testator and the administrator, now deceased, of 
an estate under which defendants claim. — liennolds v. Rees, '£.i S. C, 4^^**. 

A defendant to an action for partition is not incompetent to testify to com- 
munications between himself and a former trustee of the property now 
deceased, under whom plaintiff claimed, the plaintiff' not holding any of the 
relations to the deceased si^ecified in this Section. — Minion v. Pickens, ^ 
S. C, .502. 

And the assignee of a judgment, in his action thereon against the adminis- 
istrator of the deceased judgment debtor, can testify to communications 
between his assignor, then owner of the judgment, and the judgment 
debtor.- Co?Kin v. Phillips, 2.5 S. C, 228. 

In a contest between two claimants under the obligee in a bond for titles, 
the obligor can testify to communications between himself and the deceased 
obligee, as such a witness, though a party to the cause, has no interest in the 
action.— Woo(^ v. Wood, 2o S. C, 600. 

Witness, through whom defendants claimed, was comi)etent to testify in 
their behalf that he permitted another party, since deceased, to remain on the 
land in dispute, the testimony relating to an act of the witness and not to a 
transaction with the deceased. — Brown v. Moore, 26 S. C, UX). 

A grantor, as against her grantee, is a competent witness to prove the decla- 
ration of one deceased under whom both of the parties to the cause derived 
their title.— Blohrne v. Lynch, 26 S. C, ;300. 

In action by beneficiaries under a policy of life insurance against a bank for 
the possession of the policy, the President and Cashier of the bank can testify 
as to conversations and transactions by them with the assured, since deceased, 
as to the policy, because the plaintiffs are not ])rosecuting the action in any of 
the representative characters referred to in this Section. — Mc Cauley v. National 
Bank, 27 S. C, 21.5. 

Where the defendant, as administrator of deceased executor, brings out on 
cross-examination of the plaintiff, the surviving co-executor, that certain pay- 
ments have been made to him by defendant's intestate, the plaintiff was 
aUowed to testify as to whether other alleged pajTnents had been made to 
him. — Williams v. Mower, 20 S. C, :Si2. 

In action by creditor to set aside judgment confessed to defendant by her 
father, who died before the trial, and to set aside the sale of land under the 
judgment, a witne.ss who held none of the relations prohibited under this Sec- 
tion could testify to comunications had by him with the father.— J/ar^in v. 
Adams, 2i> S. C, .597. 

Defendant, as administrator of deceased son, being sued on note by executor 
of deceased father, was competent to prove the facts that he had had rei>eated 
conversations with the father and he had never made demand upon the 
defendant, as administrat<ir, for pa>Tnent of the note.- Richards v. Mnnro, 
•M S. C, 2«4. 

In action by creditor to set aside for fraud a deed made by his debtor, now 
deceased, one of the grantees to the deed, and party defendant, who has sold 



OF SOUTH CAKOLINA. i:;» 



liis interest in till' land, can testify to the circuinHtanc^'s of tlic traiiHiu'tion 
and the dt'darations nf tlic ^nantor. to sliow tin- fraud. — .S'/k// v. HoijiI, :!:,' S. 
("., :{;■)•». 

In action by tenant to recover pei-sonal ])roiM-rty seized by tlie cxwutor of 
the land owner for rent, which had been i>aid by plaintilT to one from whom 
he claimed to have leiused the land, such i)erson can testify jw ti> coniniunica- 
tions and transjictions with tiie decenstd land owner, he b«Mnj{ no i)arty to 
action nor interested in the result, and the action beinjf apiinHt the defenduntH 
individually and nt)t as executors. —//»_//' v. Ltitinur, 'S.i S. (.'., 255. 

In aition a^cainst administrator of a deceased debtor to recover the value of 
work done in building; and repairinj? houses, the plaintift may testify as to 
what work was done by him on the premises of intestate, in his presence, that 
beiuj; an indeiXMident {iict.—Fodcttcv. (joffury, ',i'.i S. C, 808. 

In action by a.><signee of mortgagee, the mortgagor may testify that she never 
had any coinmunication or transaction with the mortgagee, now deceased. — 
driffin v. Enrk; M S. C".,'J-4<). 

In action by surviving executor against administrator of deceased co-execu- 
tor, for atcount and settlement, the plaintiff can testify to the fact that he 
had conversjitious with defendant's intestate as to certain matters, and when, 
where, and in whose presence such conversation was had, the statements of 
witness or deceased not being disclosed. — Williams v. Mover, ;i5 S. C, "iOfi. 

Testimony incompetent under this Section is admissible if not objected to at 
t\xae.— Tompkins v. Tompkins, IS S. C, 1 ; Burris v. Whitner, 8 S. C, 510; 
lioUman v. Bollman, (i S. C, W ; MvCoiujnn v. Hall, 2\ S. C, (iOl. 

It wa.s error for Probate Judge to strike out on motion testimony as incom- 
petent under this Section, where siich testimony had been i)reviously given 
without objection. — Stark v. Hopson, 22 S. C, 42. And Circuit Judge eiTed 
in holding such testimony to be competent and sustaining the decree below ; 
he should have ordered a new trial so that the Court below might first con- 
sider such testimony.— 76. 

These provisions as to testimony of husband and wife do not apply to crimi- 
nal cases.— 67«?«' V. Belcher, 13 S. C, 459. 

A party examined on his own behalf may, like other witnesses, refresh his 
nienK)ry by book entries and other memoranda.— /?i(// v. Lambson,5 S. C. 284. 



CHAPTER VIII. 
Motions and Orders. 



8Ke. 

k401. Dellnition of iiu order. 
402. Detlnltion of 11 motion. Motions, how 
and when made. Stay of proceeding. 
Coiupellinir parties to t&stify on mo- 
tions. Decision on motion. 
408. Notice of motion. 
nt( 



SKC. 

•li>l. In iilxsence, ic, of Judge ot cliani- 
bcrs, motion may he transferred to 
another Judge. 

10.">. Enlarglnit time for the proceedings In 
an action. 



Section 401. Kvery (lirecttion of :i Court or .Iii(1<j:c\ inaik' or Dfiinition of 

, ■ i' J • 1 1 1 • • 1 -1 .an order. 

ntcifd 111 wnling, ami not inchulL'tl in a jiulgini'iit. is (li'iioini- ^^^^y x,v jh,q_ 

iiated an order. 

The refusal of a motion for nonsuit, never being "made or entennl in writ- 
ing," is not an order.— .lydcic v. Adiims, 24 S. C, 8(1. 



ISO CODE OF Civil. I'KOCEDURK 

A. I). ISIM. 

'^ - N^— "' A Ju(lt,a* lui-'' iiiJ ptiwer of his own mere motion to muke an order affecting 
the rijjhts of a part}'.— 67</^' v. Ftirkei; 7 S. C, 2^"). 

Tho order of one Court or Jwdtre cannot be set aside or dinregarded for 
irn't^ilui'ity by another.— /'i(/-»i(in v. J{. Ji. Co., -i S. C, 4;iS. 

Tlie order of one Judge granting leave to a party to make a motion before 
another Judge is without force. — Strrlr v. JR. li. Co., 14 S. C, ;i24. 

Order passed in e(iuity cause valid, although the cause is not on calendar.— 
Wri'lht V. Hrrlony, Kl S. C, 020. 

DetiiiKion of Sec. 402. 1- An upplifiitioii for .in order is a motion, 
tlons, l)o\v and Motion is proper mode of obtaining relief in a cause not ended.— H'n'^A^ v. 
when 111 a <i c; Herlony, 10 S. C, 020. 
UigVi'oiiipeHlnK Such motions must be tii'st made before the Judge of the Court ha\ing 

parties to testify jurisdiction of the case.— ^Ya^c v. Block, M S. C, 194. 
on inotiuDS ; de- " 

'^TTh'iT'"" -• ^lotions may be made to a Judge or Justice out of Court, 
except for a new trial on tlie merits. 

The right to move to vacate judgment as erroneous, at chambers, is hereby 
repealed. — Clawson v. Hufrhinson, 14 S. C, 517. 

A Judge has no power at chambers to grant a new trial on the merits.- 
Charles v. Jacob.'!, 5 S. C, o48. 

The following motions may be made at chambers : 

Motion to dissolve an attachment upon notice. — Cureton v. Daryan, 12 S. C, 
122. 

Motion for leave to file a supplemental complaint. — EdivanLtv. Edwards, 14 
S. C, 11. 

Motion to vacate a warrant of seizure to enforce agricultural lien. — Seyhr 
V. Coward, 24 S. C, IIW. 

Motion for leave to amend complaint. — Ellen v. Ellen, 2H S. C, '.»9. 

3. Orders made out of Court, without notice, may be made 
by tlie Judge of the Court, in any part of the State. 

Judge can correct mere clerical error in his de<Tee on ex parte application 
out of Court. — Chafee v. Ruiney, 21 S. C, 11. 

It is doubted whether this subdivision applies to the giunting of a writ ot 
ceHiorari.— State v. Block, 34 S. C, 194. 

4. Motions upon notice must be made within the Circuit in 
which the action is triable, or, in the absence or inability of the 
Judge of the Circuit, may be made before the resident or pre- 
siding Judge of a Circuit adjoining that in which it is triable. 

This subdivision does not empower a Circuit Judge to jierform judicial 
duties outside of his ovm Circuit. — E.r Parte Parker, (> S. C, 472. 

But Judge may render a decree in cause heard by him in one C^cuit after 
he has entered upon his duties in another Circuit.— CAa/tv v. Miincj/, 21 S. 
C., 11. 

Motion to set juside a decree of foreclosure can be made onlj- in the Circuit 
where the action is i)ending. — r/ioHifi.s v. Jiayuiond, 4 !S. C.. 'M~. 

It is error to grant relief beyond the terais of the notice.— />»' Walt v. Kinard, 
19 S. C.,2%. 

5. A motion to modify or vacate a provisional remedy, and an 
appeal from an order allowing a provisiomd remedy, shall have 
preference over all other motions. 




IrtruU tf [d%UiUi^<^'^^ \^UAA^^ 



C)V SOT'TIT rAlir)[,I\A. \h\ 

y 0. .\. I), l"'!! 

().|M<i (inlcr to stiiv |)r()C'e('(liiifT.sm)r ;i Imii^cr tiiiic tluiii t went \ / "^^^^[^Zu^C^^ 
(hivTsliall 1)0 ^frantccl hy a .Iiul^a' out (if Court ('\c('|it u|ioii \irr-J fx^a e ^a Oucf; C^, 
vioiis n()tic!i' to tlie iidverse party. ^ 

7. When any party intends to make or oppose a motion in any 
Court of record, and it shall Ix' necessary for him to have the 
afHdavit of any person who shall have rcfiisi'il to ?nake the .same, 
such Court, or a .ludizc thereof, may. hy ordci-. a|)point a referee 
to take the allidavit or (lej)osition o'i such ])er.S()n. Such person 
may he sul)pu'iiac(l and compelled to attend and make an atVidavit 
])efore sucli rcfiTcc. the same as hefore a referee to whom it is 
referred to try aii issue. And the fees of such referee Hn- sm-h 
service shall he three dollars })er day. 

S. Whenever a motion shall he made in any cause or proceed- 
ing in any of the (/ourts of this State to obtain an injunction 
order, order of arrest, or warrant of attachment, granted in any 
such case or proceeding, it shall be the duty of the Judge, Trial 
.lustice, or other officer before whom such motion is made, to 
I'eiider and make known his decision on such motion within 
twenty days after the day upon which suc^li motion shall or may 
he submitted to him for his decision. 

Sec. 403. When a notice of a motioji is necessary, it must be Notice of mo- 
srrved four days before the time appointed for the hearing ; but j^-^' ^iv §4i8 
the Court or Judge may, by an order to show cause, prescribe a 
shorter time. 

An order «iunot be made without notice to the party prejudiced by it. — 
Sfalr V. Pnrker, 7 S. C, 2:55. 

An order to enjoin a decree for sale of mortgaged premises cannot be made 
without four days' notice.— 7?K'f v. Mdhaffcij, '.I S. C, 2S1. 

Motion for secuinty for costs should be notified four days before the time for 
hearing.— £>«/«« 1/ v. Elfonl, 22 S. C. 3(H. 

Orders granted upon notice for less time should be set aside.— ^'.c Parte 
Aprlrr. :',', ^. P., 410. 

Sec. 404. \\ lii'ii iiotict' of a motion is given, or an order to ,„ „i>seiice. 
show cause is returnable l)efore a .Judge out of Court, and at the riHViniM'i"!'*^n Jv 
time iixed for the motion he is absent or unable to hear it, the [j",',',sf"r^ell^o 

same may be transferred, by his order, to some other Judge. "'"i"i«''J"*>ki"-. 
. . . ... /''.. s iiu. 

before whom the motion, in case of his absence or inaliilitv. 

might originally have been made. 

This Section extends the provisions of Section 402, subdivision 4, to the case 
of a motion already noticed or ordered to be heard in V)roi)er Circuit. — /.'.r 
I'lirtr I'lirh'i; ti S. C, 472. 

It does not i-nlarge the autboi'ity of tin- Judges to in-rforni juiliciiil acts In- 
yond tlu- limits of their own Circuits. — / h. 



182 



CODE OF ( IVII. PROCEDURE 



A. D. IHJl. 

^ '* ^ Sec. 405. The time within which any proceeding in an action 

fo'ruai.nN.fU- tnust be had, after its commencement, except the time within 

tion. which an appeal must l)e taken, may he enlar<rt'd, upon an affida- 

/b.. 6430. ^.j^ showing grounds therefor, hy a Judge of the Circuit Court. 

The affidavit, or a copy thereof, must be served with a copy of the 

order, or the order may he disregarded. 



CHAPTER IX, 



Entitling Affidavits. 

Sec. 406. Affidavits defectively entitled valid. 

Affidavits de- Section 405. It shall not be necessaiy to entitle an affidavit 

ti^ed\aiid.^°' JQ the action ; but an affidavit made without a title, or with a 

7b., u-31. defective title, shall be as valid and effectual, for every purpose, 

as if it were duly entitled, if it intelligibly refer to the action or 

jtioeeeding in whjcl^ it is mad(7^^ ^ // '7i7 



fUi/tt^ 1/ ^u/f^ 






CHAPTER X. 

Computation of Time. 

Sec. 407. Time, how computed. 

Time, how Sectioil 407. The time within which an act is to be done, 
^^i iv., §422. ^s herein provided, shall be computed by excluding the first day 



and including the last, 
excluded. 



If the last day be Sunday, it shall be 



CHAPTER XI. 

Notices, and Filing and Service of Papers. 



Sec. 



408. Notices, Ac, how served. 

409. Service, how made. 

410. Service by mail. 

411. The like. 

412. Double time where service by mall. 

413. Notices of motion, Sc, where peison- 
ally served. 



414. When papers need not be served on 
defendant. 

415. Servic* of papers where partii";* n- 
side out of the State. 

416. Summons and pleadings to be Oled. 

417. Sen'lcc on attorney. 

118. When this Chapter does not apply. 



Section 408. Notices shall be in writing, and notices and! 
i^^%,mr~ other })apcrs may be served on the party or attorney, in the man-j 



Notices, Ac., 
how served 



OF SOUTH CAHOIJiNA. 1^3 

'■ A. I). H'.M. 

iicr |)i-fsrril»(M| in the next tlircc Sections, wIumh; not otherwisi- "" • 

providt'tl bv this Codi- nf Proci'dun;. 

T(«l('i)li()n(' noticos aro vi>rbiil and do not cnmply with this Section.— /;> 
r.nir Aprirr, :55 S. C.,417. 

Sec. 409. 'I'lio stM'vioe may l)o |)Oi'.S()Mal, or t)y delivery t<» the s<Tvir-<!, how 

1 11 • • • " I i. I 1 nmdc. 

paiiy i>r attorney on wiiom tlie service is re(jiiircd to l)C made; //,.,g42i. 
or it may l)e as follows : 

1. If upon an attorney, it maybe made durin<( his absence 
Iroiii his oflice l)y leaving it with the clerk therein, or with a 
person having charge thereof ; or, when there is no person in the 
office, by leaving it, between the hours of six in the morning and 
nine in the evening, in a conspicuous place in the office ; or. if 
it l)e not open so as to admit of such service, then by leaving it 
at the attorney's residence, with some person of suitable age and 
discretion. 

2. If upon a party, it may be made by leaving the paper at his service by mail, 
residence between the hours of six in the morning and nine in " '^' 
the evening, with some person of suitable age and discretion. 

Sec. 410. Service by mail may be made where the person Tiieiiue. 
making the service and the person on whom it is to be made ^''■'**^"- 
reside in different places between which there is" a regular com- 
munication by mail. 

Sec. 411. Ill case of service by mail, the paper must be de- uoubie time 
posited in the postoffice, addressed to the person on whom it is bymaiL 
to be served, at liis place of residence, and the postage paid. isro, xiv., g-ier. 

Sec. 412. When the service is by mail, it shall be double the 

time required in cases of personal service. 

This provi.sion is intended for the benetit of the party upon whom the ser- 
vice i.s made and not for the party making; the service. The service is com- 
plete as soon as the paper is deposited in postoffice, proi)erly addre-ssed and 
stiiini>ei\.— Sullivan v. S))eif/lits, 12 S. C, .5(>1. The time for service of excep- 
tions upon the Judge, after rising of the Court, not extended when .sent l)y 
mail. — III. 

Sec 413 Notice of a motion oi' other proceeding before a Notuvof mo- 

«cv^. ixtj. ,,,,,• 1 tlon, *c., where 

Court or Judge, when personally served, shall be given at least iHTKoimiiy scrv- 

four days before the time a})pointed therefor. r;,., sjiw. 

An order to enjoin a decree for sale of mortgaged premises cannot be made 
without four days' notice. — 7^r<' v. Mahuffiij, '.) S. C, 2S1. Motion requiring 
security for costs should be notified four days beforehand. -Dittany v. El ford, 
2*JS. (".. :!(tl. 

Sec. 414. \N hell a tlel'eiidaiit shall not havi- demurred or an- wii.-n imiH-rs 
,' .* ,. , ■ • ^1 1- T . n iM> il no I be 

swered, service or notice or papers in the ordinary proceedings in s.rv.-.i on de- 
an action need not bo made uprtn him unless he l>e ini]insoiie(l ^^^ ^^^ — 




CODE OF CIVIL PIKJCEDUHE 



for wiiiit ol' hail, Init shall he nuidc ii|)()ii him or his attorney if 
iintic-e of appearance in the action has heeii <(iven. 
Service of pa- ScC. 4l5. Wlicrc a plulntitf or a defendant who has demurred 

pers where pur- , . ,• e • i i. « i.i 

ae« reside uiit or answcred. or jjives notice of appearance, resides out of the 
//). 84.W. ^tate, and has no attorney in the action, tiie service may l)e made 
by mail, if his residence be known ; if not known, on the Clerk, 
for the party. 
Summons ami SeC. 416. 'he summons and tlie several pleadill^^s in an 
uied. ' action sliall l»e iiled with the Clerk within ten (]ays after the 

[h.,i4iii. service thereof respectively, or the adverse party, on proof of the 
omission, sluill be entitled without notice to an order from a 
Judge that the .same be tiled within a time to be specilied in the 
order or be deemed abandoned. 
Service on au Sec. 417. AVhere a party shall have an attorney in the action, 
~^f/~843-> — ^'^^' '^^'■'^'i'^'^ *^^ papers shall be made upon the attorney instead of 
the party. 

Applies only after action has been commenced. — Duman v. Brown, 1.5 S. C, 
410. Notice to set aside an execution should be .served on the parties ; service 
upon attorney who renewed the execution Ls not sufficient.— /b. 

When this Sec. 418. 'I'lie provisions of this Chapter shall not apply to 
nof am^iy.^ '^ ^ ^ the service of a summons, or other process, or of any paper to 
ib.,im. bring a party into contempt. 



CHAPTER XII. 

Miscellaneous Provisions. 

Sec. SF.r. 

419. Papers Io.st or withheld, how siipplie<i. -122. Laws of other States and goveni- 

420. Where undertakings to be Bled. ments, how proved. 

421. Time for publication of notices, how 
computed. 



Papers lost or Sectloil 419. If an original pleading or paper be lost or witli- 
suppued' '^^^ ^^^^^^ '^'^ '"^^^y person, the Court may authorize a copy thereof t(» 
jbr,T4.3r. be filed and used instead of the original. 

This Section confers no new powers, but sini]ily recojniizes the peneral power 
already eidsting in the Court of so substituting new records.— />hWoi'.s v. 
Thomas, 14 S. C, SO. Such general authority includes judgments.— /ft. 

Where under- Sec. 420, The Various undertakings required to be given by 
m^T '"''*' tliis Code of Procedure must be tiled with the Clerk of the Court, 

ih.,fm. unless the Court expressly provides for a different disposition 
thereof, except that the undertakings provided for l»y this Chapter 
on the claim and delivery of personal property shall, after the 



OK SOlTII CAK'OLINA. is') 

A. 1). IN I. 

jiistifioatioii (»r tlic siiri'tics. lie dflivcix'd hy the SlicritV tn tlit- ■ 

|»;irti('s. i('s|if(tiv('ly, for wliosi' lu'iiclit llicy an- taken. 

Sec. 421. riu' time lor piihlieation of le<ral ii(»tiee.s shall l)e Time for pnt.- 

, .v. 1 1 c- a 1 1 <) n of 

eoniputed so iis to oxcliulc tlie hrst day of i>ublieatiori aiul inelude notices, how 

111 <■ 1 • 1 ... cotnpuu-*!. 

the (lay on whieh the act or event of which iiotiee is ^Mven is to isro, xiv., s-wo. 

liappi-n, or whieii completes the full period refpiired for piihliea- 
tion. 

Sec. 422. I'rinted copies, in volumes, of Statutes, Code or Uiw.s of other 

I 1 11 i 1 • rii St;itf}f un<l K<)v- 

otiici- written law enacted by any other sovereignty, State or J er- ernriifnt«. how 

... , " i • 1,11 proved. 

iitory or lorei.iin government, purportino- or proved to have been /;,., 9411. 
|)iiblished by the authority thereof, or i)roved to. have been com- 
monly admitted as evidence of the existing law in the Courts 
and judicial tribunals of such sovereignty, State, Territory or 
government, shall be admitted by the Courts and officers of this 
State on all occasions as presumptive evidence of such laws. The 
unwritten or common law of any other sovereignty, State or Ter- 
ritory or foreign government may be proved as facts by parol 
evidence ; and the books of reports of cases adjudged in their 
Courts may also be admitted as presumptive evidence of such law. 



TITLE XIII. 

ACTIONS IN PARTICULAR CASES. 



(iiAi'TKi! I. — Actions Against Foreign Corporations. 

( iiAi'THK II. — Actions in Place of Scire Facias, Quo War- 
ranto, and of Informations in tJic Nature of 
Quo Warranto. 



CHAPTER I. 

Actions Against Foreign Corporations. 

Skc. 423. Where and by whom action brounht. 

Section 423. An acti(»n against a corporation created liy or wnrn- an.i i.y 
under the laws of any other State, government, or country, may hrouKht!' 
be brought in the Circuit Court — //».. sii-'. 

1. Hy any resident of this State, for any cause of action. 

2. Hy a plaiiitilT not a resident of this State, wlu-u the cause 



180 



CODE OF ClVir. T'T^OCKOrRE 



A. D. IMM. 



of action sliall have arisen, or tlie subject of the action sluill he 
situated, within this State, 

Where such corijoration iipiiearH and answers on th«' nii'rit.s, it hul)nuts itself 
to the jurisdiction of the Court, and the c<>nii)hiint will n<jt then l>e held de- 
fective because it failed to show that the jjlaintiff wa« a resident of the State. 
—Chufee v. Postal Co., :« S. C, :i72. 

A non-resident can sue a foreign cori)oration <mly in the two cases speciflcd 
in HuV)division 2, and this action cannot be maintained unless it apjiear that it 
is brought in one case or the other.— C't'n<ra/ U. Ji. v. Oeoryia Company, :W 
S. C, 31i). 



CHAPTER II 



Action in Place of Scire Facias, Quo Warranto, and of 
Informations in the Nature of Quo Warranto. 



Sec. 
424 



425. 



42B. 



427. 
428. 



429. 



430. 

4;«. 



432. 
433. 



Scire /ncia.s and quo warranto abol- 
ished and this Chapter substituted . 
Action may be brought, by dlre<'tion 
of the Legislature, by the Attorney- 
General, to vacate a charter. 
Action to annul a corporation, when 
and how brought by the Attorney- 
General, by leave of the Supreme 
Court. 

Leave to sue, how obtained. 
Action upon information or complaint 
of course. 

Action, when and how brought to 
vacate letters patent. 
Relator, when to be joined as plaintiff. 
Complaint and arrest of defendant In 
action for usurping an olBee. 
Judginent in such actions. 
Assumption of office, Ac, by relator, 
when judfcinent is in his favor. 



Sec. 



434. Proci>edlDg8 against a defendant, on 
his refusal In deliver books or papers. 

435. Damages, how recovere<l. 

43u. One action against .several persons 
claiming office and franchise. 

437. Penalty for usurping office or fran- 
chise, how awarded. 

438. Judgment of forfeiture against a cor- 
poration. 

439. Costs against a corporation, or persons 
claiming to be such, how collected. 

440. Restraining corporation and appoint- 
ment of receiver. 

Copy of judgment roll against corpo- 
ration, where to l>c tiled. 
Entry of judgment relating to letters 
patent. 

443. A(;tlon for forfeiture of property to 
the State. 



411 



44i. 



Scire facias Sectioil 424. 'i'lic writ of scire facias, tlie writ of t/t/a irar- 
roH /'o"'abniish- '^'^^^^t^h siuJ proceedings by iiiformation in tlie natui'e of qm) icar- 
nmpter''substi- '^'(^''^to, are abolished ; and the remedies lieretofore obtainable in 
tuttd. those forms may be obtained by civil actions under the nrovisions 

1870, XIV., 844.3. „ , . .„ "^ „ , . , , 

or this ( liapter. But any proceeding heretofore commenced, or 
judgment rendered, or right acquired, shall not be affected by 
such abolition. • 

The Sui)reine Court still retains the i)ower confen'ed uinin it by Cons., Art. 
IV., Sec. 4, to is.sue writs of tpio warranto in the sense that it hius jurisdiction 
of such ])roceedinps. This Section does not attempt to abolish that jurisdic- 
tion, but simply to abt)li8h the formal characteristics of the wnit. — Alexander 
V. McKcmie, 2 S. C, 81 ; State v. Bowen, 8 S. C, 382. 



OF SOUTH CAROF.INA. 187 

~ A. D. l«il. 

Relates only to srirr /urii/s iis ii civil rcnu'dy ; does not affect it on a romwly ""— ^r"- ~^ 
to estriMit Ji recof^niziiiuf iu thu Court of (Joiierul H«'SHions.— .SYn^* v. H'l/t/rr, 
IJJS. C.,:i44. 

Sec. 425. An action muv be ]ir(»n<flit by the Attornov-(Jen- Artmn iimv 
end, in the name of the State, wlienever the Let'i.slature shall so 'iinTtion ..r tin; 

. . lA-iiMuUin: Itv 

direct, affainst a corporation, for the purpose of vacatingr or tin? Ait<.n»'.v- 

,,.,,.,,. ,. . , • . (ifncrai. t«> vu- 

anmulin<^ tiie Act of incorporation, or an Act renewing its corpo- wiu- a (■imrter._ 
rate existence, on the ground that such Act or renewal was pro- ■^''•'*'^"- 
cured upon some fraudulent suggestion or concealment of a 
material fact, by the ])ersons incorporated, or by some of them, 
or with their knowledge and consent. 

Sec. 426. An action may be brought by the Attorney-Gen- Artion to an- 
cral. m tlie name of tlie State, on leave granted by the Sui)reme t'on. wii.-n nmi 

. °. " 1 ^"^' 'jriiiijfhl hy 

Court or a Justice thereof, or a Circuit Judge, for the inirijosethe Ai'<.ni«>- 

» i- ,1 1 , IT ii • 7 i. General, by 

of vacating the charter or annulling the existence of a corpora- leave of the 

4.1 i.1 • • 1 1 1 i- 1 n Supreme court. 

tion. other than municipal, whenever such corporation shall — jb.,iUR. — 

1. OITend against any of the provisions of this Code of Pro- 
cedure, or the Acts creating, altering, or renewing such corpora- 
tion ; or, 

2. Violate the provisions of any law by which such corporation 
shall have forfeited its charter by abuse of its powers ; or, 

3. Whenever it shall have forfeited its privileges or franchises 
by failure to exercise its powers ; or, 

4. Whenever it shall have done or omitted any act which 
amounts to a surrender of its corjiorate rights, jirivileges and 
franchises ; or, 

5. Whenever it shall exercise a franchise or privilege not con- 
ferred upon it by law. 

And it shall be the duty of the Attorney-General, whenever he 
shall have reason to believe that any of these acts or omissions 
can be established by proof, to ajiply for leave, and, upon leave 
granted, to bring the action, in every case of public interest, and 
also in every other case in which satisfactory security shall be 
given to indemnify the State against the costs and expenses to be 
incurred thereby. 

Sec 427. Leave to bring the action may be granted upon the i.eavo to sue; 
ajijjiication of the Attorney-(«eiieral ; and the Court or Judge i.v.;,,^ xiv., sue. 
may, at discretion, direct notice of such application to be given 
to the corporation or to its officers, previous to granting such 
leave, and may hear the corporation in opposition thereto. 

Sec 428. An action may be brought by the Attornev-Gen- Action upon 

*' . . . - Infunnatlon o r 

eial. 111 ilu' name of the State, upon his own information, or upon complaint of 

, , . - . . cuuree. 

the comi)lamt of any private party, or by a private party inter- 

m 13 



188 CODE OF CIVIL PROCEDURE 

A. D. 1891. 

' V ' ested, on leave granted by a Circuit Judge, against the parties 

offending, in the following cases : 

1. When any person sliall usurp, intnule into, or unlawfully 
hold or exercise any public oflice, civil or military, or any fran- 
chise within this State, or any office in a corporation created by 
the authority of this State ; or, 

2. When any puljlic officer, civil or military, shall have done 
or suffered an act which, by the provisions of law, shall make a 
forfeiture of his office ; or, 

3. When any association or number of persons shall act within 
this State as a corporation wdthout being duly incorporated. 

Action, when Sec. 429. An action may be brought by the Attorney-Gen- 
brought to VZ cral. iu the name of the State, for the purpose of vacating or 
cate letters pa- j^^„^^^|ii^g letters patent granted by the people of this State in 

lb., Mi«. ^i^Q following cases : 

1. When he shall have reason to believe that such letters patent 
were obtained by means of some fraudulent suggestion or con- 
cealment of a material fact, made by the person to whom the 
same were issued or made, or with his consent or knowledge ; or, 

2. When he shall have reason to believe that such letters patent 
were issued through mistake, or in ignorance of material fact ; 
or, 

3. When he shall have reason to believe that the patentee, or 
those claiming under him, have done or omitted an act, iu vio- 
lation of the terms and conditions on which the letters patent 
were granted, or have, by any other means, forfeited the interest 
acquired under the same. 

Relator, when Sec. 430. When an action shall be brought by the Attomey- 

Safntiff.'"^ General by virtue of this Chai>t«r on the complaint of any private 

1S70, XIV., 8449. pj^p^y^ Qj. by a. person having an interest in the question, the 

name of such person shall be joined with the State as plaintiff ; 

and in every such case the Attorney-General or Circuit Judge, 

as the case may be, may require, as a condition precedent to 

bringing such action, that satisfactory surety shall be given to 

indemnify the State against the costs and expenses to be incurred 

thereby ; and in every such case brought by the Attorney-General 

where such sur^ is given, the measure of compensation to be 

paid by such person or persons to the Attorney-General shall be 

left to the agreement, express or implied, of the parties. 

Complaint and Ssc. 431. When such an action shall be brought against a 

Sant^'n a C-" person for usurping an office, the Attorney-General, or private 

San°Sfflcr^ party bringing the same, in addition to the statement of the 

"i/A.8450. cause of action, may also set forth in the complaint the name of 



OP SOUTH CAROLINA. 




tho jjur.soii rii^'lit rally entitled to tlic ollii-u, with a statement of 
liis riifht thereto ; and in siieh ease, upon proof by aflidavit that 
the defendant has received foes or einohiments belonging to 
tho office, and by moans of his usurpation thoroof, an order may 
1)0 granted by a Judge of the Circniit or .Iii.stice of the Supreme 
Court for the arrest of such defendant and holding him to bail ; 
and thereupon he shall be arrested and held to bail in the man- 
ner and with tho same cITect and su])ject to the same riglits and 
liabilities a.s in other civil actions where tho defendant is subject 
to arrest. 
S83. 432. Tn cverv case judgment shall be rendered upon the JiKiKmpnt in 

• 1 ■• 1 1 ,• 1 " i 11 2i • 1 i 1- ii , such iicllnns. 

rigliL oi the (letendaut, and also upon the right or the party so ii,.,ii:A. ' 
alleged to be entitled, or only u])on tlio right of the defendant, 
as justice shall rcfjuirc. 

Sec. 433. If tliu judgment be rendered upon the right of the Assumption or 
person so alleged to be entitled, and the same be in favor of such n-:ut4)r, w h .-ii 
person, he shall be entitled, after taking the oath of office, and iiis favor, 
executing such official bond as may be required by law, to take ''-9^-'- 
upon himself the execution of the office; and it shall be his 
<luty, immediately thereafter, to demand of the defendant in the 
action all the books and papers in his custody, or within his 
power, belonging to the office from which he shall have been 
excluded. 

Sec. 434. If the defendant shall refuse or neglect to deliver proceed inps 
over such books or papers pursuant to the demand, he shall lic femiuiiu"on*iite 
guilty of a misdemeanor, and the following proceedings shiill be Hv"r''iK«jks*'o''r 
had to compel delivery of such books or papers : '^"jTr 8^5:1 — 

1. Whenever any person shall ])e removed from office, or the 
term for which he shall have been elected or appointed shall 
expire, he shall, on demand, deliver over to his successor all the 
books and papers in his custody as such ofhcer, or in any way 
{il)pertaining to his office. Every person violating this provision 
shall be deemed guilty of a misdemeanor. 

2. If any person shall refuse or neglect to deliver over to his 
successor any books or papers, as reipiired in the preceding Sec- 
liuii, such successor may malce complaint thereof to any Judge 
of tho Circuit Court, or Justice of the Supreme Court, where 
the j)er3on so refusing shall reside ; and if such officer be s;itis- 
lied by the oath of the complainant, and such other testimony as 
shall be offered, that any such books or papers are withheld, ho 
shall grant an order directing the person so refusing to show 
cause before him, within some short reasonable time, why he 
should not be compelled to deliver the same. 



I'.tO CODE OF CIVIL PROCEDURE 

A. D. I8W. 

3. At the time so appointed, or at any other time to which the 
matter may be adjourned, upon due proof being made of the 
service of the said order, such officer shall proceed to inr|uire 
into the circumstances. If the person charged with withlnjld- 
iug such books or papers shall make affidavit before such officer 
that he has truly delivered over to his successor all such books 
and papers in his custody, or appertaining to his office, witliin his 
knowledge, all further proceedings before such officer shall cease, 
and the person complained against shall be discharged. 

4. If the person complained against shall not make such oath, 
and it shall appear that any such books or papers are withheld, 
the officer before whom such proceedings shall be had shall, by 
warrant, commit the jDcrson so withholding to the jail of the 
County, there to remain until he shall deliver such books and 
papers, or be otherwise discharged according to law. 

o. In the case stated in the last Section, if required by the 
complainant, such officer shall also issue his warrant, directed to 
any Sheriff or Constable, commanding him, in the day time, to 
search such places as shall be designated in such warrant for 
such books and papers as belonged to the officer so removed, or 
whose term of office expired, in his official capacity, and which 
appertained to such office, and seize and bring them before the 
officer issuing the warrant. 

6. Upon any books or papers being brought before such officer 
by Aartue of such warrant, he shall inquire and examine whether 
the same appertained to the office from which the person so 
refusing to deliver was removed, or of which the t«rm expired, 
and he shall cause the same to be delivered to the complainant. 

7. If any person appointed or elected to any office shall die, 
or his office shall in any way become vacant, and any books or 
papers belonging or appertaining to such office shall come to the 
hands of any person, the successor to such office may, in like 
manner as hereinbefore prescribed, demand such books or papers 
from the person having the same in his possession ; and on the 
same being withheld, an order may be obtained, and the person 
charged may, in like manner, make oath of the delivery of all 
such books and papers that ever came to his possession ; and in 
case of omission to make such oath, and to deliver up the books 
and papers so demanded, such person may be committed to jail, 
and a search warrant may be issued, and the property seized by 
virtue thereof may be delivered to the comjilainant, as herein- 
before prescribed. 



OF SOUTH CAliULliNA. V.fi 



A. D. IS1H. 

Whon* a pcrMon luus been oloctcd Probutc JiuIko and hn ({ualitlcH and in com- — — , 

misHioncd as such, li»« in primit farir entitled to the ])()Hsessi()n of tlie office 
and its books, records and i)roi)erty, witliout awaitintja judj^nentin his favor 
under a jn'oceedin^; in i/ito irtirninlo ; aiul his jiredecessor in office may be 
conmiitted to jail, as for contenii)t, for refusal to olu-y an onler of the Circuit 
Judf^e directin^J him to surrender such ollico and property to hia Huccesaor.— 
Ejc Parti' Whipper, 32 S. C, 5. 

Sec. 435. If judfjment be reiiflored upon the ri^lit of tlie namuKwt, how 
])i'is(»n so alU'irod to l>c entitled, in favor of such person, lie niny ihTo, xiv..sir>4. 
recover, by action, the damages which he shall have sustained 
by reason of the usurpation by the defendant of the oftico froin 
•which such defendant has been excluded. 

Sec. 436. Where several persons claim to be entitled to the one anion 

J, , . ,. . atfalnst wveral 

same oincc or franchise, one action may be brought acrainst all iH;n«.ns ciaim- 
such persons, m order to try their respective rights to such office frnnchi.se. 
or franchise. i^.,e4o5. 

Sec. 437. When a defendant, whether a natural person or Penalty for 
a corporation, against whom such action shall have been brought, or framhise, 
shall ])e adjudged guilty of usurping or intruding into, or '^^^-'ibnvjt.^^ 
lawfully liolding or exercising, any office, franchise or privilege, 
judgment shall be rendered that such defendant be excluded 
from such office, franchise or privilege, and also that the plaintiff 
recover costs against such defendant. The Court may also, in 
its discretion, fine such defendant a sum not exceeding two 
thousand dollars, M'hicli fine, when collected, shall be paid into 
the Treasury of the State. 

Sec. 438. If it shall be adjudged that a corporation against judgment of 
which an action shall have been brought pursuant to this Chapter u^insta'c'o'^r- 
has, by neglect, abuse or surrender, forfeited its corporate rights, **"?)"**gj.., — 
l)rivileges and franchises, judgment shall be rendered that the 
corporation be excluded from such corporate rights, privileges 
and franchises, and that the corporation be dissolved. 

Sec. 439. If judgment be rendered in such action against a costs against 

,. . , 1 • • i. 1. i- ii a corporation, 

C()r])(»rati(ju, or against persons claiming to be a corporation, tlie or persons 

Court may cause the costs therein to be collected by execution suiii, bow coi- 

against the persons claiming to be a corporation, or by attach- -^^8458. 

ment or process against the Directors or other officers of such 

corporation. 

Sec. 440. When such judgment shall be rendered against a nostrnininvr 

corporation, the Court shall have power to restrain the corpora- un.i uppoim- 

tion, to appoint a receiver of its property, and to take an ,-..ivor. 

account, and make distribution thereof among its creditors; ^''- s-*-'^". 

and it shall be the duty of the Attorney-General, imniciliately 



102 CODE OF CIVIL PROCEDURE 

A. D. IKM. "" 

""■"^ ' after the rendition of such judgment, to institute proceedings 

for that purpose. 
Copy of jndg- SeC. 441. Upon tlie rendition of such judgment against a 

111 f U t r O I 1 . J. .1 ,• II- e t li I -, 

upiinst corpora- corpuiatiDM, or lor the vacating or annulhng of letters patent, it 
wi\\(^\. shall be the duty of the Attomey-rJeneral to cause a copy of the 

i8;o. XIV., 8400. jmigjnent roll to be forthwith filed in the office of the Secretary 
of State. 
Entry ofjudg- Sec. 442. Such Secretary shall thereupon, if the record re- 
"fetterMwie^^ lates to letters patent, make an entry in the records of the 
ib.,i*6\. office of the Secretary of Stiite of the substance and effect of such 
judgment, and of the time when the record thereof was docketed ; 
and the real property granted by such letters patent may there- 
after be disposed of in the same manner as if such letters patent 
had never been issued. 
Action for for- Sgc. 443. AVhenever, by the provisions of law, any property, 
erty to the State real or personal, shall be forfeited to the State, or to any officer 
■' ^' for its use, an action for the recovery of such property, alleging 
the grounds of the forfeiture, may be brought by the proper 
officer in the Circuit Court. 



TITLE XIV. 

GENERAL PROVISIOXS. 



Sec. 1 Sec. 
444. Definition of real property . 4.50. Judges meet In convention to revise 

44.5. Definition of personal property. and amend rules of Circuit Court. 

440. Definition of property. j 41)1. Justices of Supreme Court may make 

447. DeflnUlon of Clerk. I rules. 

448. Rules of construction. ' 452. Proceedings by mandamus and pro- 
4 in. Inconsistent statutory provisions re- talbitlon not affected, 4c. 

pealed. 4.5.3. Equity rules to prevail In cases of 

I confilct. 

Deamtion of Section 444. The words ''real property" and ** real estate," 
re^i^ro^rty^ as uscd ill ilii.-^ Code of Procedure, are coextensive with lands, 
tenements and hereditaments. 

Definition of Sec. 445. The words "personal property," as used in this 
per sona prop- q^^^^, ^£ Procedure, include money, goods, chattels, things in 

Jb., 84G7. action and evidences of debt. 

Definition of Sec. 446. The word "property," as used in this Code of 
'"Tb., §408. — Procedure, includes property, real and personal. 



OF SOUTH CAIiOLliNA. 193 

Sec. 447. Tlie word '* Clerk," as used in this Code of Pro- """ — ■< ' 

(■('(lure, siifiiilies the Clerk of the Court where the action is peud- cMk. " 

in<;. and in the Sujjrenie Court the Clerk of the County mentioned "'• •'**'• 

in the title of the eonijdaint, or in another County to which the 

Court may have changed the place of trial, unless otherwise 

specified. 

Sec 448. 't'he rule of common law, that statutes in deroffa- Rules of con- 

. ^ Htrurtlon. 

tion of that law are to be strictly construed, has no application ib.,847o. 

to this Code of Procedure. 

Sec. 449. All statutory provisions inconsistent with this Code !nr.,nsist cnt 
of I'ruL'etlure are repealed; but this rejieal shall not revive a viHKjV/repeaieJ 
statute or law which may have been repealed or abolished by the i^-^o. xiv.,m7i. 
provisions hereby repealed. And all rights of action given or 
secured by existing laws may be prosecuted in the manner pro- 
vided by this Code of Procedure. If a case shall arise in which 
an action for the enforcement or iirotection of a right, or the 
redress or prevention of a wrong, cannot be had under this Code 
of Procedure, the practice heretofore in use may be adopted so 
far as may be necessary to prevent a failure of justice. 

Remedj' can be had under the Code, in action ah-eady pending, according to 
its new forms of proceeding if practicable ; if not practicable, in order to pre- 
vent failure of justice, resort might be had to the former practice.— Panif/i v. 
Mann-, 10 S. C, 348 : Arthur v. Allen, 22 S. C, 4^32. In the light of this Sec- 
tion so much of the Act of 1878 as to appeals (10 Stat., 01)8,) is inconsistent 
with Section ;>15, subdivision 2, and must be considered as repealed.— 3/o/air 
V. R. li. Co., m S. C, 510. 

The Code making no provision as to proceedings in case of certiorari, the 
" practice heretofore in use ■' must govern in such case.— Ex Parte Black, 'S4 
S. C, I'.M. 

Sec. 450. The Justices of the Supreme Court and the Judges judges meet 
of the Circuit Courts shall meet in general convention, on such b"en7i'iaiiy u.rt" 
(lay and at such place as may be designated by the Chief Justice, nilt^""'/ circuit 
at least once in every two years, counting from the year of our ^'j^^^\^-^. ^^^ 
Lord one thousand eight hundred and eighty-two, for the purpose xvni., m. 
of revising and amending the rules of the Circuit Court and 
establishing such additional rules as may be deemed necessary to 
regulate the practice in the Circuit Courts : Provided, Such 
alterations or additions be not inconsistent with any of the 
statutes of the State. 

Such convention has no power to prescribe rules for the exercise of any 
8i)ecial jurisdiction conferred by statute upon a Clerk or Trial Justice. Rule 
60 of the Circuit Court does not apply to sureties on a bond given by lionee to 
obtain warrant for seizure of crop undi'r agricultural lien.— Sharp v. I'almrr, 
31 S. C, 444. 

The authority of the Rules, so adopted, not inconsistent with the C<.h1o, 
recognized.— A'cfc/jm v. Lanclecker, 32 S. C, 1.55. 



194 CODE OF CIVIL PROCEDURE. 

A. D. 1894. 

*^"'~'>^~~' Sec. 451. I'lie Justices of the Supreme Court shall, from 
Supreme Court tiiue to time, make such rules for the orderly conduct of business 
"T/"'" ir/" "* ^'^ said Court as they may deem i)roper, not inconsistent witli 
this Code of Procedure. 

PnM-..HHiiniBrs Scc. 452. Until the Legislature shall otherwise jirovide, the 
aud pmhibiiion sec(jnd j)art of this Code of Procedure shall not afifect })roceeding8 

not aHei'titl, Ac. , , i •« •,• 

//*.,« 475. ~ "^y mniiclamus or prohibition. 

Equity Ruips Sec. 453. Cicuerally in all matters in wliich there is any oon- 

ciwes'of conflict! ^^''^ "^' variance between the rules of Equity and the rules of the 

Common Law, with reference to the same matter, the rules of 



Equity shall prevail. 



Iii{k\\ to (ode of (l\il I'nKvdmv. 



A. 

SECTION. 

Abatement — 

[See AciiuNs.] 

Abbeville CorxTY — 

Time for holding Courts in Ho 

Embraced in Eighth Circuit 17 

Abscond — 

Persons about to, may be arrested for debts not due. 

[Subdiv. 5.. 200 

Absence from State l-^l 

Abstract of Judgments — 

Clerk to keep a book to be called 300 

Judgment to be entered in 'M)\ 

AVhat to contain 301 

Accounts — 

IIow stated in pleadings 119 

Verified copy of, to be delivered 17!> 

Further, may be ordered 1 7'J 

In Trial Justices' Courts, either party may be required to 

exhibit Subdiv. 14.. 88 

Pleading founded on HS 

Keference to take, after judgment on issue of law ■-*'.' 1 

For information of Court, or to carry a judgment into effect. '^93 
[See Bill of Particulars, Current Account, Long Account.] 

Acknowledgment of Debt — 

When it must be in writing 131 

Action — 

Definition of '-^ 

Two kinds of, civil aiul friniinal i 



100 IXDEX TO CODE OF CIVIL PROCEDURE. 

SECTION. 

Action — ( Confiiiucd. ) 

Civil, (lefiiied (5 

Criminal, defined .1 

Remedies divided into, and special proceedings 1 

May be brou<^ht by Attorney-General, wben 4'-iO-4*2(i 

One form of, established 8'J 

Not to be brought on judgment without leave of Court, ex- 
ception 01 

Against foreign corporations 423 

Limitation of : 

Civil, when can be commenced 04 

Limitation not to apply when right of, already accrued. . . 0.3 

For recovery of real property 00- 00 

Plaintiff limited to two, for recovery of real property. 

[Subdiv. 2.. 08 
Xone to be commenced for recovery of real property after 

forty years 100 

L^pou judgments, bonds or instrument secured by mort- 
gage Ill 

Upon contract 112 

LTpon liability by statute 112 

For trespass to real property 112 

Detaining or injuring goods 112 

For criminal conversation 112 

For relief 112, 118 

Upon policies of insurance 112 

Against Sheriff, Coroner, &c 113, 115 

Upon a statute for penalty, forfeiture 11 2, lit 

For libel, slander, assault, &c 114 

In behalf of the State 114, 110 

"When deemed commenced 120, 24S 

If defendant out of tlie State 121 

By persons insane, imprisoned, or under age 122 

By representative of a deceased person 1 23 

By aliens 124 

After judgment reversed 12.") 

Where stayed by injunction 126 

Parties to : 

Must be prosecuted in name of real party in interest 132 

When cause of action assigned 133 

By executor, trustee, Ac 134 

When married woman a party 135 



lM)i:.\ 'I'o CODI", (H' ('l\II. l'i;()('KT»T'RK. ]!•; 

SECTION. 

Action — [Oni finned.) 

Parties to — (Continued) : 

When infant a party 130 

For partition or foreclosure 13T 

Who to l)e ])laiutiirs in 13S 

Who to be nuide defendants 130 

Joinder of Parties to : 

Those united in interest to be joined 140 

Persons severally liable may be 141 

Jjandlord and tenant may be joined in actions for recovery 

of real property 130 

Not abated by reason of death or marriage of party 14"^' 

None after verdict for a wrong 14^^ 

Court may order abated in certain cases 142 

Place of Trial of : 

Certain, to be tried in County of the .s/7?/.s 144 

Court may change place of trial 144 

For recovery of real property, partition, foreclosure 144 

For jienalty or forfeiture 145 

Against a public ofiticer 14') 

All other, to be tried in County where defendant resides. . . 140 

If more than one defendant 146 

When Court may change jilace of trial 147 

Place changed, all jiroceedings to follow 147 

Ho w Co mmc n ced : 

By service of summons 148 

Requisites of summons 140 

Notice to be inserted in summons 150 

Suhmitting Controversij WitJiout : 

Parties may agree upon a case 3T4 

Case, what to contain ;)T4 

Court to hear and render judgment 374 

Offer to compromise 380 

Active Energy — 

Of executions, how renewed Subdiv. 1 . . ;> 1 

Adjustment of Costs — 

By the Clerk 3->5 

Notice of 320 

Of interlocutory 320 . »— -/ 

Administration-^ £^ ^ -^^Z ^^.M ^«^^^^^ u^^ Ui ^ 

Granting oi^oy Judge of Probate Court 30 

Settlement of, where granted 40 



108 INDEX TO CODE OF ( IVIL PROCEDURE. 

SECTIOS. 

Administkators — 

Actions By or Ar/ai/is/ : 

Costs iu actions hy or aj^aiiist 330 

No discharge to be granted to, uutil after notice 41 

Admission — 

Of service of snmmons 159 

Of gennineness of paper, wlion may be required, &c 389 

In answer of part of plaintiff's claim Subdiv. G. . 2G5 

By not answering or replying 189 

Advehtisement — 

Of summons 15G 

Of special sessions of Courts 28 

Affidavits — 

Xot necessary to entitle 406 

K^ecessary to procure warrant of attachment 250 

To be filed 250 

Requisites of, in actions for claim and delivery 228 

To obtain jjublication of summons 156 

In actions for foreclosure and partition 156 

Of proof of service for publication 159 

In case of service otherwise than by publication 159 

Proof of disbursements by 326 

On motion, proceedings where a jierson refuses to make, 

[Subdiv. :.. 402 

to vacate order of arrest or to reduce bail 226 

to vacate injunction, &c 241 

to obtain arrest 202 

Agext — 

Kotice of appeal from Justice's Court to be served on 360 

When he may verify a pleading 178 

Service of process upon, in what cases 155 

AiKEx County — 

Embraced in Second Judical Circuit IT 

Times for holding Courts in 10 

Allegations — 

In pleading, when deemed true 189 

Of pleading liberally construed 180 



TNDK.V TO CODE OF (:i\IL I'K'Of'KDrRK. 199 

HKCTIOS. 

Allowance — 

Of costs and (lis])iivseniciits :]'2G 

Of costs on motion 328 

or l.ail 74, Jil7 

Amendment — 

Of conij)liiint, time of answer after 1G7 

Procecdingri after 107 

Of variances 1 ;»( » 

Of course 1 W.) 

After service of answer or demurrer 1 It:} 

By the Court 1 !)4 

By order 1 95 

On ai)peal 339, 349 

In Trial Justice's Court ss 

By referees "^!i4 

Amount — 

Claimed, judgment by default not to exceed 297 

Anderson County — 

Embraced in Eighth Judicial Circuit 17 

Times for holding Courts in 25 

Answer — 

The only pleading by defendant is demurrer or 104 

Statute of Limitations must be set up by 94 

Time to 1 04 

Extending time to 4i »5 

And demurrer 1 1>4 

AVhat to contain I'o 

And counter-claim K I 

Certain objections to complaint must ])e taken bv 109 

In action for libel or slander 180 

In action to recover proi)erty distrained, doing damage 187 

Of several defenses 1 T 1 

Siiam and irrelevant, may be stricken out IVo 

Demurrer to K2 

Frivolous 208 

Kew matter in, when deemed controverted 1T4 

Judgment on failure of. 207 

Objections to complaint not ajjpearing on the face thereof 

are to be taken by 108 



'^00 INDEX TO CODE OF (IVlf. PROCEDUl^E. 

SECTION. 

A'SS\\FAi—{Co)itinned.) 

C>bjecti(>n uot taken by, or demurrer, when waived 109 

Time to, if complaint be amended 107 

Time to, after service of order of arrest :i04 

May be allowed after time therefor has expired 105 

Admitting part of claim 2'I5 

Amended, of course 1 93 

Of counter-claim 1 70, 171 

When it may be rei)lied or demurred to 174, 175 

Motion for judgment on 1 75 

Injunction after 242 

>Suj)jjIe/)ie/ifal, when proper 198 

Frivolous, motion for judgment on 208 

In Trial Justices' Courts 88 

Of title in Trial Justices' Courts 83 

To be accompanied with undertaking 84 

As to one of several causes of action 86 

Appeal — 

Allowed from Probate to Circuit Court 55, 57 

Allowed from Trial Justice's Court 358 

Proceedings in Probate Court stayed by 59 

Who may 337 

Parties to, how designated 338 

Title of action not changed by 338 

How made 339 

Reviewing judgment by, in civil or criminal action 335 

Mistake in proceedings after notice of, may be rectified. .339, 349 

Clerk to transmit papers to ajipellate Court 340 

Intermediate orders i*eviewed on 11, 341 , 345 

Judgment on 342 

Restitution on reversal of judgment on 342 

Xew trial may be ordered on 342 

To Supreme Court: 

Time for 345 

Time for, cannot be enlarged 349 

Time for, when it commences to run 57, 345, 359 

Costs on 331 

Exceptions for purposes of 290 

To Supreme Court, in what cases 290, ;544, 352 

Power of Court on 12 

Jiemittitur after 12 



T\ni:x TO coDK ()!• cixiL iMiocKDrin:. 201 

BECTIOX . 

A Pi'i: A L — ( Continued. ) 

To Supreme Court — (Continued) : 

When to be reheard 13, 1-4 

Socnrity or deposit on. . .;UG, 350, 352, 353, 354, 355, 356, 357 
Sureties bccomin<^ insolvent, new undertaking may be 

ordered 347 

Stay of execution on, Inmi judgment directing the pay- 
ment of money 340 

Stay of, from judgment directing the assignment or deliv- 
ery of documents or personal property 350 

Stay of, from judgment to execute conveyance or other 

instrument 351 

Stay of, from judgment directing sale or delivery of real 

property, or for the sale of mortgaged premises 352 

On being perfected, proceedings stayed 353 

Security may be dispensed with or limited in certain cases. 353 
By executors, administrators, trustees, or persons acting 

in another's right 353 

Undertaking on, and service thereof 354 

Security on, to be approved and justify 355 

Undertaking on, may be in one instrument or several 354 

Case of perishable property 350 

Undertakings on, to be filed 357 

Statement of case for 344, 345 

To the Circuit Court : 

Time for 57, 359 

AVhen process not personally served 359 

Sot ice of : 

AVhat to contain 339 

On whom to be served 300 

To be tiled with Clerk 300 

Where Trial Justice dead or removed 305 

Return, how made and coni})elled on 302 

Keturu, how made if Trial Justice be out of office 303 

Keturu, where Trial Justice is out of office, dead, in- 
sane, &c 305 

Return, amended, or further 304 

Hearing of : 

To be on original papers 307 

To be on original tustiiiutny 358 

At hearing of, new trial may be ordered -JOS 

Dismissal of, for want of prusecutiuu 300 



202 INDEX TO CODE OF CIVIL PROCEDURE. 

BECTIOX. 

Appeal — ( Conl tinted. ) 

Jiulgment on Subdiv. 2 , . 308 

New trial on Subdiv. C... 3G8 

Costs on, how awarded 3T3 

Restitution on 371 

Set-off of costs and recovery 373 

Amount of costs on 373 

Fee to Trial Justice for his return 373 

From judgment on controversy submitted without action. 376 

Appellant — 

Party appealing known as 338 

To cause certified copy of papers to be transmitted to appel- 
late Court 340 

Arrest — 

[See Arrest and Bail.] 

Arrest and Bail — 

No person to be arrested in a civil action, except as pre- 
scribed herein 199 

Provisions of Code as to. not to apply to proceedings for 

contempts 199 

In what cases 200 

On proceedings supplementary to execution Subdiv. 4. . 31"^ 

Of female Subdiv. 4 . . 200 

Order for, by whom made 201 

affidavit to obtain 202 

security on issuing of 203 

when made 202 

to be served 205 

and affidavit to be delivered to Sheriff 205 

copy of, and affidavit, to be delivered to defendant. 205 

motion to vacate 225 

time to answer after 204 

Delivery of defendant's undertaking to plaintiff 213 

How made 20<J 

Defendant may be discharged from, on bail or deposit 207 

By bail 208 

In action for usurping an office 431 

Of persons about to abscond Subdiv. 5 . . 200 

May be where debt is not due in certain cases 200 

Securities on, how proceeded against 211 

how exonerated 212 



INDEX ^ro CODE OF (•I\II. PROCEDURE. W.i 

(tKCJlOS. 

Akkkst and H\ii.—{('()//h'niic(/.) 

Securities on, justification of iiKi 

iiotico of justilicatioii :il4 

quiililii'iitioii of ','Z, '-ili) 

deposit in li^u of 218 

Payment of clej)o.sit into Court 219 

BaiL alKtwant'e of 217 

substituting, for deposit 220 

deposit, how disposed of after judirnient 221 

SlierifT. when liable as 222 

« vacating arrest, or reducing 22.") 

aftidavits, on motion for 226 

liable to Sheriff 224 

proceedings on judgment against Hheritl 223 

Assault — 

Action for, within two years 114 

Trial Justices have jurisdiction of action for ; limit 

[Subdiv. 3.. 78 

Costs in action for 323 

Assessment — 

Of damages, jury to make 2S5 

On judgment on issue of law 201 

In special findings 283 

In favor of defendant 283 

Assets — 

Probate Court may order niai'shaling or administration of . . . 40 

ASSK4NEE — 

Of f/iinf/ i)i ac/ion, to sue 133 

Takes subject to set-off 133 

Not to testify in certain cases 4»»0 

Assignor — 

Of tliijifi in (irtimi, examined a> witness 4(Mi 

Attachment — 

In what cases it may issue 24s 

By whom granted 241J 

Requisites to the issuance of 25o 

Affidavit to obtain, to l)e fileil 2")0 

Security on issuance of 2") 1 

14 



304 INDEX TO CODE oF CI VI I. PROCEDURE. 

SECTION. 

Atta( ifMKXT — {Continued.) 

To wliom directed and what to require 252 

Several may issue at the same time to dilTerent Counties 5352 

Mow executed 253 

Property seized on to be appraised 254 

Proceedings on, in ease of })erislial)le pro})erty or vessels. . . . 255 

Claim of third person ; proceeding on 255« 

When debt not due 2556 

Of rights and shares of defendant in the stocks of corpora- 
tions, &c 250, 257, 258 

Sheriff may sue for debts, &c Subdiv. 4. . 259 

Plaintiff in, may prosecute actions on notes, &c., attached. . 2G() 
How executed on property incapable of manual delivery. . . . 257 
Certificate of the defendant's interest in stock of corporation 

to be furnished to Sheriff 258 

Defendant may procure discharge of, and return of property 

on giving undertaking 262, 2G3 

Issue of ownership, how tried '2bha 

Undertaking of the defendant on such discharge of attach- 
ment 2G3 

Return of, and proceedings thereon 264 

Release of property of one of several defendants 263 

Judgment, how satisfied 259 

How satisfied, on judgment for the plaintiff in the action. 

[Subdiv. 1 . . 259 
Sheriff may repossess himself of pi'operty eloigned. 

[Subdiv. 3.. 259 

Court may order things in action to be sold Subdiv. 4. . 259 

Residue of attached property, after satisfaction of judgment, 

to be delivered to defendant Su])div. 4. . 259 

On judgment for the defendant, the bond given to the 
Sheriff on the attachment to be delivered to the de- 
fendant 261 

Lien on property attached 253 

To enforce paifincnt of cos/s against guardian of an infant 

plaintiff 329 

against assignee of cause of 

action 334 

For contempt, for disobedience to orders in supplementary 

proceedings 322 

In Trial Justices' Courts Subtliv. 4 . . 71 , 249 

Person establishing right to property may move to discharge. 263 



I 



HKCTION. 

AnoitN'KY — 

When linhli- to arrest Siilxliv. I . . :.M)(i 

Scrv i<'f (if |);i|»('rs ill ciiiisc ii|)()ii I<is. 40!), 417 

A\'lu'ii he iiiiiy vt'i'il'y pli'iitliiiif 178 

To suhscrihi' pleadings 177 

Attorney-Genkua i> — 

Actions, iiiMV 1)(' lir()iii;-1il l)y. in nanie (tf State, when, 

A-Z'). 42(1, 4--iH, 4^9 

when Legislature directs 425 

duty of, to apply for leave to bring Subdiv. 5. . 426 

to bring, upon his own information, when 428 

on leave granted by Supreme Court, when 426 

on com]ilaint of any private party relator to be joined 

in 4;{i» 

in cases of usurping office 431 



B. 

Bah.— 

[See Arri'.s/ aud lUiil.^ 

Hanking Associations — 

liills insued by, not subject to limitation of actions loO 

Ba UNWELL County — 

Embraced in Second Judicial Circuit 17 

Times for holding Courts in 10 

Special provisions as to Courts in Ill 

Battery — 

Costs in at'tious for 323 

Beaufort County — 

Embraced in Second .ludicial Circuit 17 

Times foi- lioldiiig Courts in 1!> 

Berkeley County — 

Embraced in First .Judicial C'irciiit 17 

Times f(»r holding Courts in IS 

Bill oi" PvurnTLAUS — 

Court mav order cit lici- narl \ Id dcliviM* 170 



206 INDEX TO C'ODK <)F CIVIL PROCEDriM-:. 

SECTION. 

Bills and Notes — 

Complaint in action on 183 

Parties to actions upon 141 

I'ut in circulation as money by moneyed corporations, lim- 
itation of action on 130 

Provisions as to assijrnment not to apply to transfer of 133 

Action or defense upon, how ])leaded 183 

Taken upon attachment, may be put in suit Subdiv. 4. . '^59 

Bono — 

Actions on. Trial Justice has jurisdiction in certain. 

|Su])div. ').. 71 
Limitation of Subdiv. Z. . Ill 



c. 

Calendar — 

Clerk, when to enter cause on 276 

Fees for entering cause on, in First Circuit 276 

Disposition of causes on 270 

CaXC'ELIXG — 

Notice of lis pendens 1 ")3 



Case — 

On trial of questions of fact by the Court Subiliv. 2 

Settlement of Subdiv. 4 

Motion for new trial on 

On appeal from motion for new trial Subdiv. 4 

With exceptions on appeal Subdiv. 1 

When to be docketed in Supreme Court Subdiv. 2 

May be agreed upon Subdiv. 4 



290 
286 
287 
286 
345 
345 
345 



Cause — 

Of action, when it accrues on a current account 110 

when it accrues in cases of fraud Subdiv. 6. . 112 

what may be joined 1 8.s 

to be separately stated Subdiv. 7 . . 18S 

Of demurrer 1 65 

Certificate — 

Of service of summons by the Sheriff 150 

Of defendant's interest in rights and shares in corporations. . . 258 

Of deposit in lieu of bail Subdiv. 2 . . 200 



I\|)i:.\ TO CODK OK ('I\IL IM:o('i:i)rHK. 207 

HKCTION. 

('iia.mi:i:hs — 

Orders at, how :i|»|)('iiI(Ml fi-oin Siilnliv . 1 . . ;» l."» 

Motions may he made In'Torc .liid^^'c at U)'^ 

Reeoivors may be appoiiiteil at "iOS 

CiiANCKKY Casks — 

.ludfjmeiit ill <iet'aiilt of answer in 2'w 

Kiile as to costs in li'-l'.i 

CiiANiii: — 

Of [ilacc of trial UT 

CllAUl.KSTOX COUXTY — 

Embraced in First Judicial Circuit 1 ^ 

Times for lioldin*;^ Courts in 18 

Steno<yrapiier i'or 2TT 

City Court of 9 

Court for settling mercantile disputes in city of I) 

ClfKSTEH COL'N'TY — 

Embraced in fSixth Judicial Circuit l", 

Times for holding Courts in 2;} 

( 'II i;STK 11 1'l ELD Cor NT Y — 

Embraced in Fourth Judicial Circuit IT 

Times for holding Courts in "i 1 

Order of Inisiness at Courts in "^'1 

Circuit Cotkt.s — 

Judges to hold 28 

Judges may adjourn, in certain cases :^0 

Qualification of Judges of ol 

To be Courts of record '-Vi 

Clerk and Deputy Clerk of 33 

To have appellate jurisdiction of matters in Probate Court. . ')") 

Ajjpeals to, from Probate Court ■'u 

T'rial in, of cases ap})ealed from Probate Court HO 

Appeals to, from inferior Court 358 

May tax costs for prevailing j»arty 331 

.Stenographer may be apjioiuted for 277 

Times for holding 1 s- 20 

Special sessions of 28 

Civil Actions — 
[See Actions.] 



.SK<TION. 

Civil Rkmkdy — 

Not luergiMl in eriiniiiitl 7 

Claim and I)i:i.ivkky — 

Of jicrsiiiutJ jn-operiy in Courts of record 227 

within what time action to l)e coni- 

menced 112 

requisites of at1i(hivit to obtain de- 
livery 228 

requisition to Sheriff to take and de- 
liver the property 229 

Security for return of tlie property 230 

Defendant may except to plaintiff's sureties 231 

When defendant deemed to have waived exception to j)lain- 

tiff's sureties '. 231 

Plaintiff's sureties, when and how to justify 231 

When defendant entitled to a redelivery of the jjroperty taken 232 

Defendant to give undertaking with sureties 232 

When property taken is to be delivered to plaintiff 232 

Defendant's sureties, when and how to justify 233 

When Sheriff responsible for defendant's sureties 233 

Qualification and justification of sureties, same as on arrest. . 234 
Property, how taken when concealed in any building or in- 

closure 235 

Duty of Sheriff as to keeping and delivering property taken. 236 

Claim of property ])y third party 237 

Notice and affidavit, and proceedings thereon, to be filed. . . . 238 

Judgment in action for 299 

Verdict on 283 

Jury to assess damages 283 

In Trial Justices' Courts Su])div. 11.. 71 

Affidavit in action for Subdiv. 11.. • 1 

Undertaking on part of plaintiff' Subdiv. 11 . . 71 

Direction to Constable Subdiv. 11.. 71 

Summons Subdiv. 11.. 71 

Duties of Constable Subdiv. 1 :> . . 71 

Defendant may except to ])laintiff"s sureties. .Subdiv. 14. . 71 

Proceedings on exception to plaintiff's sureties. Subdiv. 14. . 71 
Judgment for defendant, if plaintiff's sureties fail to 

justify Subdiv. 14. . 71 

Defendant may require return of the property. Subdiv. 1 o . . 71 

Undertaking on the part of defendant Subdiv. 15 . . 71 



ixhi'lx To ('(H>i': oi-' ('i\iL iM.M»ci-:i)ri;i-:. ;iu:» 

BKfTION. 

Ci.AiM \Nii \)i:\A\\:\i\ -i ( '(i///i//itr(/.) 

Ill 7'ri/i/ ./iis/iffs' Ciiinis — (CIontinucMl) : 

(^iialilicatioii and jiistiliciitioii of sureties 72 

Trial of 77 

Trial .Justice oi* jtiry to assess vahu; of ])ro|K'rty ami dam- 

iif^cs 77 

\\'luMi action may proceed without i)ersoiial service of 

sununous 77 

Fee of Trial Justice ',', 

W'luMi property claiiiUMl l)y other i)ci'soii than (h'fendaiit . . 77 

Clarendon County — 

Embraced in Third Judicial Circuit 17 

Time for holding Courts in v>o 

('LicRK OF Court of Common Pleas — 

On docketing Trial Justice's judgment st 

To insert costs in entry of judgment 32G 

To make up judgment roll 302 

To enter judgment in conformity with verdict 'iSC, 

To transmit papers to appellate Court 340 

Service on, for the party 4 lo 

On entry of judgment by confession 385 

To compute interest on verdict or recovery 3"25 

To issue executions for costs 324 

To keep book of abstracts of judgments 3< '< » 

Abstract to contain certain entries ool 

To place causes on Calendar 2fi7, 27f> 

To advertise special terms 28 

To enter decrees from Probate Court 07 

To docket transcript of judgments from Trial .lustices' 

Courts 87 

Clerk of Probate Court — 

Not to practice as attorney in 35 

Appointment of 35 

Colleton County — 

Embraced in Second Judicial Circuit 17 

Times for holding Courts in !'•• 

Commi:n<'Kmi;nt oi' Aitions — 
[See Ach'oii,s.\ 



210 IXDEX TO (^ODE OF f'TVIT. PnorF.DrRK. 

SECTION. 

CoMlM.AIXT — 

Is the first pleading on the ])iirt of the phiiiitilT 102 

Requisites of, ordinarily 103 

In action for libel or slander 1K5 

AVliat causes of action may be joined in 188 

Allegations of, when admitted 1S9 

Time to answer 104 

Copy of, need not be served vvitii summons. ... 151 

Demand of copy of lol 

Demurrer to 1 65 

Objections to, when deemed to be waived 109 

After amendment 107 

Filing of, before publication of summons 151, 153 

in all cases 416 

Dismissal of, for not serving copy Su])div. 4. . 296 

for not proceeding to trial Subdiv. 4. . 296 

Supplemented, when alloAved 142, 198 

Verification of 177, 178 

Proceedings in Probate Court may Ije commenced by 04 

Compromise — 

Offer of, in Justices' Courts Subdiv. 15 . . 88 

Defendant may serve offer of, any time before trial 386 

Computation of Time — 
[See Time.] 

Concealed Defendant — 

Attachment against the property of 248 

Service of process on, by publication 156 

[See Attachment.] 

Condition Precedent — 

Performance of, how pleaded is;} 

Confession — 

Of judgment without action, may be for debt due or con- 
tingent liability 383 

Statement in writing, and form tlicreof 384 

Statement to be filed, and judgment entered thereon 385 

Judgment roll in 385 

Costs on 385 

Execution on judgment in 385 

Trial Justices may take Subdiv. 8 . . 71 



TXDKX TO CODK OV ('I\ll> I'lloCKDT'lM-:. 211 

SKCTION. 

CoNi'Li(TiN<i Claims — 

I^lacc of (ri;il el' ;i<li(iii for, to real |ir(»|»ci-fy 1 II 

CONSTAHLKS — 

Action a,<raiiist. witliin tliruu years II :{ 

COXSTKUCTIOX — 

Of pleadings to be liberal \h() 

Of Code of Procedure 448 

Of words 44 I. 44."), 446 

COXSTUUCTIVE XOTir H — 

Lis Poidens i.s \7u\ 

Contract — 

Action on. wlion to be oommeueod 1 ! •* 

Evidence of new, or continuing, must be in writing i:!] 

Trial Justice to have jurisdiction of certain actions o]i ; 1 

COXVKYAXCE — 

In judicial sales, by officer making sale 30G 

Copy— 

Of books, papers, &c., used on trial 3S9 

Of lost paper may be filed and used 419 

Of paper in hands of opposite party 389 

Coroner — 

Action against, within three years 113 

Corporations — 

Service of summons upon 155 

Service on agent of certain 155 

Injunction to suspend business of 245 

Actions against, in name of Attorney-Oeneral 425. 420, 4:<JT 

Interest in, may be sold under attachment 250 

Judgment of forfeiture against 439, 440 

Keceiver of property of 2<)5 

How examined, as to property of a judgment debtor. . . .'.\\A. 3rj 

Action to annul charter of 42G 

Verification of pleadings by 1 TS 

Answer of, in supplementary j)roceedings 314 



312 INDEX TO CODK ()F (i\'ir. PROCEDURE. 

SECTION. 

Costs — 

Except in chancery cases to follow event of action :323 

No more, than recovery in certain action? 323 

Execution may issue for 324 

To he inserted in entry of judgment 32G 

Notice for adjustment of, and disbursements 32G 

Court or Judge may adjudge interlocutory 326 

As condition of postponement of trial 327 

On motion 328 

Against an infant plaintiff, guardian liable for 329 

In actions by or against executors, &c 330 

On appeal from inferior to Circuit Court 331 

In actions prosecuted in name of the State 332 

To be charged against person for whose benefit action brought 

or defended 333 

Against assignee of cause of action 334 

In chancery cases, in discretion of the Court 323 

On appeal from Trial Justice's Court 373 

On issue of title in Trial Justice's Court 81 

On submitting controversy without action 375 

Set-off of 373 

After offer of defendant to compromise, or to liquidate dam- 
ages 388 

After notice of no personal claim 152 

None allowed for service of process unless made by Sheriff. . 154 

Counter-Claim — 

Defendant may set up in answer 170 

What may be set up as 171 

Several may be set uj) 171 

Reply to demurrer to 1 72. 174 

Allegations of, when deemed true 189 

Offer to allow 38G 

County — 

In what, action to be tried 14G 

Court — 

Designation of, for trial of imiieachment 9 

Supreme Court 9 

Common Pleas, General Sessions 9 

Probate Courts 9 

Justices of the Peace 9 



1 



INOKX TO COOF, OF (•]\']L runrVA)VUK. ■>]:', 

rtK<TION. 

Court — {dtniliininl). 

'Vv'\i\\ .lust ices 

City Court ol" Cluirli'stoii It 

l"'i)i- arltitnitioii <»!' iiicnaiitilc di.sj)ute.s '.) 

Municipal Coui'ts •) 

'W) 1)0 funiishi'd with ii cojiy of tlic plt'juliiifijs iiHl 

To direct jury as to verdict 282 

Leave of, to issue execution 304 

Trial by 288 

Supreme, jurisdiction of 1 1 

power of 12 

appeals to :}44 

terms of 13 

additional terms of 13 

preference of causes on calendar of 13 

position of cause on calendar on a second or sub- 
sequent appeal 13 

judgment of, how pronounced 14 

Sheriff to provide rooms for 15 

where to be held IG 

how adjourned 10 

rehearing in 14 

opinions of 14 

Court of Common Pleas — 
[See Circuit Conrls.] 

Criminal Action — 
[See Actions. \ 

Criminal Conversation — 

Action for, may be brought in Trial Justice's Court ; limit, 

[Subdiv. 3.. 78 

limited to six years Subdiv. 5. . 112 

rule as to costs in 323 

current account, actions on 11 G 



D. 

Damages — 

Rate of, where recoverable 21)9 

When costs not to exceed 323 

Writ of inquiry of 1 75 

Defendant'^, jury may assess 285 



■m IXDEX TO CODK OF (I VI I. I'ROCEDrRE. 

SKCTIOK. 

Dam AUKS — {0)tiliiniitl.) 

By reason of injunction, reference to ascertain ■i4.j 

AssesstiK'/tf i)f\ after a])|)cal to Supmiit* C'(»iirt 11 

In action for u.siirj)ing ollicc V.ib 

l)AliLIN(;T()N COINTY — 

Knil)raced in P^ourtli Judicial Circuit 17 

Times for holding Courts in :M 

Death — 

Action not to abate by reason of, of party 142 

Of persons before expiration of time to bring action 123 

After verdict 142 

Of Trial Justice, effect of, on appeal from 30.') 

Debtors — 

Proceedings against joint 377 

To be summoned 377 

Form of summons 37^^ 

Affidavit to accompany summons 370 

Party summoned may answer and defend 380 

Examination of, in supplementary proceedings 312 

To judgment debtor may pay amount of debt to Sheriff in 

certain cases 313 

Decision — 

On trial of question of fact by the Court 289 

On a question of law 21)0 

Time for, on motion Subdiv. 8 . . 402 

Decree — 

Money, by Probate Court, to be enrolled G7 

Manner of enrolling G7 

To be a lien from time of enrollment 07 

Default — 

Judgment hy, when may be taken Subdiv. 1 . 367 

plaintiff to give security in certain cases before 

taking Subdiv. 2 . . 207 

Defect of Parties — 

Demurrer on account of Subdiv. 4 . . 105 

Pleading to be corrected jis to l'J4 

Plaintiff ignorant of name of party may amend when dis- 
covered 196 



TXDKX TO coDI', ol' (IN IL l'l;n( IlDriM-l. nr> 

HKCTION. 

Defense — 

After jiKlLjiiKMit, wluMi allowed 106 

WluMi (Iccnu'd waived 1G9 

Sliaiii and irrelevant, may l)e stricken out 173 

.)iid,i,niu'iit on frivolous answer or. inav lie taken 2G8 

Dkfkxdaxt — 

Party adverse to plaint ilT is 90 

\\\\n to be 139 

Service of sujnTnons on 154 

May tile notice of //.y pendens 153 

May demur or answer 1 Go 

.Served by publication, may l)e allowed to defend after jiidir- 

ment 1 5r. 

Arrest of -^oo 

Attacbment against property of :i48 

Appearance by 160 

Order on. to satisfy amount admitted due 265 

Affirmative relief to -.'So, 296 

Judgment against one of several 296 

Damages of, jury to assess 285 

When papers need not be served on 414. 415 

Costs against, after notice of no personal claim 152 

Where several defendants 140 

Olfer of, to compromise 386 

When to furnish copy pleadings to Court 281 

Not personally served with process in Trial Justice's Court, 

time for appeal 359 

May otter to liquidate damages 387 

r)i:['lNITI()X — 

Of action 2 

civil action (» 

criminal action 5 

special proceeding 3 

judgmcTit 'Um 

trial 273 

general verdict 282 

special verdict 282 

order KH 

motion ti>-.' 

real propei-ty 444 



•nc INDEX TO CODE OK CIVIL PROCEDURE. 

SECTION. 

Definitk>x — {Continued.) 

Of personal property -l-io 

property -^46 

Clerk. .". -147 

Delivery of Personal Property — 
[See Claim and Delivery.^ 

Demand — 

Of copy complaint, when and how made 151 

admission or inspection of writings :J89 

items of account 179 

bill of particulars 179 

For relief to be inserted in summons 1 50 

Demurrer — 

Or answer only pleading on part of defendant 164 

Within what time to be served 164 

Need not be verified 177 

To the complaint, when 165 

May be to all complaint or to any one alleged cause of action 16G 

When it may be disregarded 166 

Must specify the grounds of objection 166 

Objections not aj^pearing on face of complaint to be taken 

by answer 1 68 

Grounds for, when deemed waived 169 

To amended complaint 167 

And answer 172 

To answer, in what cases 1 T4 

To counter-claim 1 74 

To reply 176 

Frivolous, judgment on •iQf^ 

Amendments after 193 

In Trial Justice's Court Subdiv. 6. . 88 

Denial — 

How made 17U 

Deposit in Lieu of Bail — 
[See Arrest and Bail.] 

Of moneys in Court 265 

In lieu of security on appeal 347 



INDKX TO coDK oi' CINIL IM.MX'KDriM:. -.'i; 

BMTION. 

DiSAHII.I TIKS — 

What arc 108 

KlTect of 108 

When they must exist 122 

I )efeiidant out of State 1 -^ 1 

Of alien enemy 1 '^4 

By death of party entitled to sue or he sued 123 

Several, etfeet of ] 28 

Not applicable to certain actions 120, 130 

Stay of action by injunction 126 

Not to be available in certain cases 127 

DlSBTRSEMEXTS — 

[See Costs.] 

Fees of Stenographer allowed as 278 

Amount of, to follow event of action 323 

To be inserted in judgment 32G 

Against an infant plaintiff 329 

Charged against assignee after action brought 334 

DrsciiARGE — 

Judge of Probate not to grant a final discharge to executor, 

&c., without notice 41 

Notice of application for, how given 41 

Notice of, how to be advertised 41 

Of attachment, motion for 2G2 

On defendant's giving security 263 

Discovery — 

Action for, abolished 3rtO 

Of property, order for :j 1 2 

Of books, papers and documents 389 

Dismissal — 

Of coinphtiiit, foi' not serving summons Subdiv. -1 . . 296 

Distinction — 

None as to forms of pleadings in actions in Courts df record. 1<>1 

Docket — 

Cause to be entered on. when 2^6 

Document — 

[See Discorcri/. ] 



218 INDEX TO CODK OF cniL TROCEDURE. 

BKCriON. 

DoiMLK TlMK — 

On service by mail 410 

E. 

Edgefield (orxTY — 

Embraced in Fifth Judicial Circuit 17 

Times for holdinir Courts in 22 

Eighth Circuit — 

Counties composing IT 

Times for holding Courts in 25 

Enrollmext — 

Of money decrees ' 67 

Index of 68 

Extitlixg — 

Affidavits 4o6 

Entry — 

Of verdict Subdiv. 1 . . 286 

Of judfjineiit, manner of 206 

After offer 386 

Costs after 386 

In abstract of judgments 301 

Equity — 

Rules of practice in, to prevail 453 

Causes, at Summer terms of Courts 26 

Errors and Defects — 

When to be disregarded 1 97 

Evidence — 

Of foreign laws 422 

Of foreign i)ublic records 422 

On the trial of an issue of fact by the Court, how reviewed. 

[Subdiv. 2.. 290 

Pleadings not to be, in criminal proceedings 178 

Examination in supplementary proceedings not to be in 

criminal i)roceedings Subdiv. 5. . 312 

Of new or continuing contract to take case out of Statute of 

Limitations 131 



IXDKX TO CODE OF CIN'K. IM.'OCIlDrRK. 210 

SECTION. 

YjVlhESCK— {('on/ iiiucd.) 

or parties 4(»0 

Of i);irty taken conditionally .'JlU 

Certain pcM-sons not to give, of transaction or commnnieation 

with lunatic or deceased person 400 

Ex A M I NATIONS — 

Of parties, by adversary only in the cases prescril)ed by the 

Code .300 

May be ou the trial, conditionally, or on coniinissiim :}l»l 

Before trial :v.i2 

Attendance fctr purpose of, how compelled 303 

Punishment for refusing to submit to 305 

Testimony on, may be rebutted 304 

On their own behalf, when 396 

Of co-plaintilf or co-defendant 398 

Of joint contractors or parties united in interest 398 

Of witnesses, witness not excluded by reason of interest. . . . 309 
Party for whose immediate benefit action is prosecuted or 

defended 400 

Assignor of cause of action 400 

In supplementary proceedings 314 

Of parties or witnesses on a motion Subdiv. 7. . 402 

Exceptions — 

To a matter of law arising on the trial by the Court may be 
taken within ten days after written notice of the judg- 
ment -^00 

To be reduced to writing, or entered in the minutes of 

Judge Subdiv. 'i. . . 286 

Separating Subdiv. 3. . 286 

Need not be signed, nor sealed, nor need a bill of exceptions 

be made Subdiv. 2 . . 286 

How stated in a case Subdiv. 2. . 286 

Settlement of 287 

To sureties on appeal to Suiireme Court .3,5.') 

To sureties on claim and delivery 231 

To report of Referee 204 

Executions — 

Of course, within ten years 303 

Judgments enfon-ed by 304 

Kinds of 30o 

15 



I 



220 INDEX TO CODE OF CIVIL PROCEDURE. 

BECTIOV. 

Executions — ( Cunt in ued. ) 

Form of '. 308 

To be deemed process 305 

To what Counties may issue 300 

May issue to several Counties at same time 306 

How renewed 31<> 

Debtor of execution debtor may pjiy 313 

Leave to issue, how obtained 30'J 

Against the person 307, Subdiv. 3 . . 308 

Against a married woman 30G 

Return of, in what time 310 

On judgment of Trial Justice's Court Subdiv. 12 . . 88 

Proceedings supplementary to 312 

On confession of judgment without action 385 

Sales under, by what Court or officer to be made 300 

For the delivery of real or personal property. . . .Subdiv. 4. . 308 

Prol)ate Court empowered to issue 69 

Xot to be issued till decree enrolled 69 

May issue, upon transcript from other Counties 69 

Satisfaction of 69 

Executors — 

Costs in actions by or against 330 

May sue without joining party in interest IS-l 

May appeal without giviug security 353 

Not to be discharged except after giving notice 41 

EXOXEKATIOX — 

[See Arrest and Bail.] 

Ex Parte Order — 

May be made by Judge in any part of the State . . Subdiv. 3 . . 402 

How vacated or modified 342 

None to stay jiroceedings longer than twenty days. Subdiv. 6. 402 

Extension — 

Of time to answer when defendant arrested 204 

perfect appeal 348, 349 

answer generally 195 

Express Company — 

Manner of serving process on Subdiv. 1 . . 155 



INDEX TO CODE OF CIVIL I'K'OCMDr UK. '?.'t\ 

F. 

SECTION . 

Fa 1 HUE — 

Of proof, what is 1 02 

Fairfield County — 

Eml)ra('0(l in the Sixth Judifial Circuit 17 

Times for holding Courts in 23 

False Imprisonment — 

Action for, may he brought in Trial Justices' Courts 

[Subdiv. 3.. 78 

Must be within two years 114 

Costs in action for 323 

Fees — 

[See Costs.] 

Of Stenographer 278 

Females — 

Not to be arrested in civil actions Subdiy. 4. . 200 

Fictitious Name — 

Parties may be sued by, wlien real name unknown IOC 

Fiduciary Capacity — 

Arrest for money received in Subdiv. 1 . , 200 

Fifth Circuit — 

Counties composing 17 

Times for holding Courts in 22 

Filing— 

7'ranscn'pf of judyment, effect of Subdiv. 2 . . 302 

Of Trial Justice's Court ST 

Complaint lol 

Notice of lis pendens ir)3 

Undertakings 3,37, 420 

Affidavits 250 

Copy in lieu of original 410 

Notice and affidavit on claim and delivery 238 

Of complaint in cases of service by publication 15G 

Final Order — 

A}i})eal from, to Supreme Court Subdiv. 2 . . 11 



222 TXDEX TO CODE OF CIVIL PROCEDURIi:. 

BECTION. 

Finding — 

Of facts controlled by general verdict 284 

First Circuit — 

Counties composing 17 

Time for holding Courts in 18 

Foreclosure of Mortgage — 

Power of Court on Subdiv. 7... 188 

Judgment on Subdiv. 7 . . 188 

Service of summons on unknown parties in actions for lo6 

Guardian for infant in Subdiv. 2 . . 137 

Place of trial of Subdiv. 3 . . 144 

Notice of Us pendens in actions for 153 

Foreign Corporation — 

Actions against, in what Court and by whom it may be 

brought -123 

Service of summons on Subdiv. 1 . . 1 55 

Service of summons by publication 156 

Attachment against the property of 2-48 

Foreign Laws — 

Printed copies of, to be evidence 422 

Forfeiture — 

Action for, within what time to be commenced. Subdiv. 2. . 114 

Against Directors or stockholders of moneyed corporation. . . 130 

Place of trial of action to recover Subdiv. 1 . . 145 

Judgment of, against corporation 438 

To State, actions for 443 

Form — 

Of action 89 

Of pleading 161 

Provision as to, applied to Trial Justices' Courts. .Subdiv. 15.. 88 

Former Practice — 

Inconsistent with the Code abrogated 449 

Preserved where not changed 449 

Fourth Circuit — 

Counties composing 17 

Times for holding Courts in 21 

Special provisions as to Courts in 21 



IxVDPLX TO CODE OF CI VI I. IMJoCEDURE. 223 

8KCTI0.N. 

Fkancihse — 

Action against ])ersoiis claiiiiin^^ Suljiliv. 5. . 42<> 

Penalty for iinhiwfiilly exeivisiiijf Snixliv. 1 and 3. . 42H 

Fraud — 

Certain actions for, may be in Cfjiirtd ol" Trial .Instircs. 

[Suhdiv. !».. ri 

"WluMi ri;:f]it of action accrues in cases of Subdiv. 0. . II "i 

Time of limitation in actions for relief on the ground of, 

prescribed Subdiv. 6 . . 112 

Arrest when defendant has been guilty of Subdiv. 3. . 200 

Frivolous Pleading — 

If demurrer, answer or reply be, may be stricken out 208 

G. 

Georgetown County — 

Embraced in Third Judicial Circuit IT 

Times for liolding Courts in 20 

Genuineness — 

Of writing, admission of 389 

Grantee of the State — 

Limitation of action by 90 

Of lands held adversely, action by 97 

Grant — 

[See Grantee of the State.] 

Greenville County — 

Embraced in Eighth Judicial Circuit IT 

Times for holding Courts in 25 

Business at Summer terms of Courts in Sul)iliv. 0. . 'i'^ 

Guardians — 

When minors may choose 50 

Probate Court appointing, to liavc jurisdiction of ward's 

estate 51 

For infant, when necessary 5U, 1 30 

Appointment of 137 

For married women, not necessary 135 

Ad litem, liable for costs 329 

For lunatics or persons imprisoned 150 

Pischarge of 41 



224 INDEX TO CODE OF CIVIL PROCEDURE. 

H. 

SECTION. 

Hampton County — 

Embraced in Second Judicial Circuit 17 

Times for liokling Courts in lit 

Heir at Law — 

Person prosecuting or defending suit as, not to testify to 

transactions with deceased persons 400 

Horry County — 

Embraced in Tiiird Judicial Circuit 17 

Times for holding Courts in 21 

Husband and AVife — 

AYhen they should join, or be joined, as parties '. . 135 

Shall not be compelled to disclose confidential communica- 
tions Subdiv. 2 . . 400 

I. 

Idiots — 

Service of summons on Subdiv. 3 . . loo 

Imprisonment — 

Of defendant, effect of, on time of limitation 122 

Inability of Judge — 

To hear motion 404 

Inconsistent — 

Statutory provisions repealed 440 

Index — 

Judge of Probate to keep, of money decrees GS 

Infancy — 

Effect of, on time of limitation 1 22 

Infant — 

Costs against 320 

Service of summons on Subdiv. 2 . . 155 

Guardian of, liable for costs 320 

To appear by guardian 1 3G 

Guardian for, how appointed 137 

Guardian ad litem for Subdiv. 2 . . 137 



L 



TXDEX TO ('()])]■] ol' ('|\1L IMM)(i:i)Ci;i-:. 225 

^ BECTIO.N. 

IxFERiOR Court— 

Appeal tVom, to Circuit Court 3r)S, ;}.');) 

InJUN< TI"\ 

Ju.--lirc'.s of ,Suj)reiut; Court may ^n'iuit 'i'V.i 

^[ay be by the Court or a Ju(l;]fo ::.'.n 

To Busjxmd business of corporation 245 

lu wliat case granted 240 

May be granted at any stage of the action l)efore judgment. 241 

How grounds foi- issuing may be shown to the Court 241 

After answer 242 

Damages on, how ascertained 243 

Security upon 243 

Security upon, to stay business of corporation 245 

Motion to vacate or modify 246 

Affidavits on motion 247 

Stay by, effect of, on time of limitation 126 

Probate Judge may grant, in certain cases 40 

Insane Person — 

Service of summons on Subdiv. 3. . 155 

Limitation of action against 108, 122 

Inspection of Books and Writings — 

How obtained 389 

Installments — 

Execution for, on judgment by confession 385 

Action in Trial Justices' Courts for Subdiv. 5 . . 71 

Instruments — 

For pai/inenf of /no/iei/, action or defense on, how iileadcd . . 183 

In Trial Justices' Courts 88 

Insurance Companies — 

Service of summons on Sul)div. 1 . . 155 

Interest — 

Party in, to sue 1 :)2 

All parties in, to be joined l.'JS. \.][) 

When all ])arties in. need iu)t be joineti 140 

Transfer of, not to abate action 142 

1 N tekluc uto li y — 

Costs, how adjusted 3'J6 



2-20 IXDEX TO CODE OF CIVH. PROCEDURE. 

SECTION'. 

Intermediate Order — 

May be reviewed on appeal 11 

Interpleader — 

Wlieu it will be ordered 143 

Inventory — 

To be made of propert}' seized on attachment 254 

To be returned to officer issuing warrant 254 

Irrelevant — 

Answers and defenses ma}' be stricken ont 1T3 

Or redundant matter may be stricken out on motion l.sl 

Issues — 

Different kinds of 269 

AVhen issues of law arise 2T0 

When issues of fact arise 2T1 

Of law and fact may arise in one action 272 

"When there are issues of law and. fact, the issues to be tried 

together 272 

The judicial examination of, is a trial 273 

How tried , 274 

How, of fact in equity causes may be framed and tried 274« 

May be referred 275, 292 

Of law to be tried by the Court, unless referred 274 

Of fact in action for the recovery of money only, or specific 
real or personal property, or for a divorce, to be tried by 
a jury, unless jury trial is waived, or a reference be 

ordered 274 

In other actions, to be tried by the Court, except a jury trial 

or a reference be ordered 275 

Of law, proceedings in judgment on 2!il 

Either party may bring, to trial 276 

To be entered on calendar 276 

How disposed of on the calendar 279 

Costs of trial of 323 

Nature of, to be endorsed on complaint 276 

[See Trial, Verdict. '\ 

Feigned, not allowed 92 

Collateral 92 

Items of Account — 
[See Accounts. "[ 



I.NDKX 'I'O CODK ol- (IN IL I'KMX ■ i:i)C RI-:. Ti7 

J. 

BIXTION. 

Joinder — 

Of caiifios of action IKS 

(k'fenses Sulidiv, 'i.. ITl 

parties plaintiff 1 :{s 

parties, where some refuse to join 14o 

wlien very numerous 140 

defendant 1 :\U 

[See Parties to Jet ions.] 

Joint — 

And several defendants, proceedings against, wliere the sum- 
mons is serVed on one or some of the defendants only. 

[Subdiv/l.. 157 
"Where the summons is served on all the defendants. 

[Subdiv. 3.. 1.57 

Judgments in actions against 377 

Contractor, examination of, as a witness on his own behalf. . 398 

Debtors 314 

Debtors, proceedings against 377 

Debtors, form of summons 378 

Summons to be accompanied by affidavit of amount due. . . . 379 

Answer by party summoned 380 

Subsequent proceedings the same as in an action 380, 381 

Answer and reply to be verified as in an action 382 

Attachment may issue to compel application of property to 

payment of the judgment 381 

Supplementary proceedings against 314 

Judge — 

May adjourn Court of Common Pleas *-27 

Power to open Common Pleas before completion of criminal 

business 'ila 

May hold special sessions of (.'ircuit Court 28 

None to be ordered except by, at the time of holding the 

regular sessions for the County 28 

AVhat causes to be tried at extra term 28 

^lay adjourn Circuit Courts when dangerous and general 

disease prevails 30 

Qualification of 31 

Justice of the Supreme Court to administer oath to .31 

Not to act as Peferee 205 

May grant orders of injunction 239 



228 INDEX TO CODE OF CIVIL PROCEDURE. 

8KCTI0.V. 

Judges — 

[See Jndye.] 

Judgment — 

Defined 2GG 

A lien on real property for ten years 30'J 

On failure of defendant to answer 267 

After service by publication Subdiv. 2 . . 2G7 

For the difference on an admitted demand and admitted 

counter-claim . . Subdiv . 1 . . 207 

After amendment of complaint IC? 

Clerk to enter, pursuant to verdict Su])div. 1 . . 280 

Manner of entering 296 

Clerk to insert costs in entry of 326 

In action to recover personal property 290 

On the pleadings, motion for 175 

Against joint or several defendants 157, 296 

For want of reply to answer 175, 267 

On frivolous demurrer, answer or reply 208 

To be entered in abstract of judgments 301 

AVhen and how docketed 87, 302 

On report of Referee 294 

On issue of law, proceedings on 291 

By confession 383 

Against one of several partners 157 

On answer, motion for 175 

On verdict 280 

Against married women Subdiv. 4 . . 290 

Of Supreme Court 14 

Of Trial Justice, transcript of 87 

docketing 87 

How pleaded 182 

How satisfied in action commenced by attachment 259 

Appeal from, to Supreme Court 344 

On appeal to Circuit Court 308, 369, 370, 371 

On appeal to Supreme Court from order granting anew trial. 

[Subdiv. 2.. 11 

In foreclosure cases Subdiv. 7 . . 188 

Taken against a party through his mistake, inadvertence or 

surprise, or excusable neglect, Court may relieve from 195 

How enforced 305 

"When a lien on real estate 309 



J 



b 



INDKX TO CODE OF ('I\IL I'K'OCKDnii:. 220 

BKCTION. 

Judgment — ( Coutiii tied. ) 

Restitution on reversal of !.")(;, \\\-l 

Bfrersrd, time for coniniencinf,^ action after Iti.j 

Will not be reversed for technical defects H>T 

Actions on. re<,nilated (»1 

Lien of, on ])ersonal jiroperty f(jr four months after levy. 

[Subdiv. 1 .. ;!1() 

Actions on, in Trial .fustices' Courts Subdiv. 7 . . 11 

Time for commencing actions on Subdiv. 1 . . 1 1 1 

JRoU, when and how Clerk to make up '.Wi 

What jiapers to contain 'Mr4 

On submission of controversy without action '6'to 

Koll, on confession of ;J85 

In actions for usurping office 432 

How lien of certain, may be affected. 310 

How revived -310 

Judge of Probate — 
[See Probate Cuiir/.] 

JUEISDICTION — 

Of Courts generaUy 10 

To enforce judgment against married woman. . .Subdiv. 4. . 296 

Answer or demurrer for want of 105 

Courts acquire, from time of seiTice of summons, or allow- 
ance of provisional remedy 1 00 

Of Supreme Con rt 11 

Of Judges of Probate 37, 38, 43, 48, 49, 51 

Probate Court first taking cognizance of settlement of estates 

to have exclusive 4S 

Not to be collaterally impeached 49 

Circuit Courts to have appellate, of cases from Probate Court 55 

Of Trial Justices' Courts in civil cases 71 

Justification' — 

Of slander, how pleaded 1>*^5 

bail 210 

sureties on ajipeal 355 

claim and delivery 233 

K. 

Kershaw County — 

Embraced in Fifth Judicial Circuit 17 

Times for holding Courts in 22 



:.>30 INDEX TO CODE OF CIVIL PROCEDURE. 

L. 

BECTI05. 

Lancaster County. — 

Euibniced in Sixth Judicial Circuit 17 

Times for holding Courts in '^'S 

Landlord and Tenant — 

Trial Justices' Courts to have jurisdiction of matters be- 
tween Subdiv, 1(1.. Tl 

Laurens County— 

Embraced in Seventh Judicial Circuit 17 

Times for holding Courts in 24 

Legal Notices — 

Time for publication of, how computed 421 

Levy and Sale of Property^ — 

Sales, by whom and how made 306 

Lexington County — 

Embraced in Fifth Judicial Circuit 17 

Times for holding Courts in 22 

Libel and Slander — 

Action for, within two years 114 

How stated in complaint 183 

Answer in action for 186 

Costs in 323 

Lien — 

Jiidfiment a, on real estate for ten years 300 

On i^ersonal property for four months after levy. .Subdiv. 1 . . 310 

AVhen entered prior to March 1, 1870 300 

Of attachment on real estate 2o3 

On personal property 254, 258 

How obtained, on certain judgments 300 

Limitation of Actions — 

For Recovery of Eeal Propertii : 

Not to apply where action commenced or right of accrued. 03 

Civil to be commenced as prescribed 04 

Plea of, to be taken by answer 04 

For recovery of real property 05 

By grantee from State 06 

To be brought within ten years 07 



I 



TXDTvK TO CODK OF ('I\II. IMlOCKDrCK. 231 

SECTION. 

LiMiTAiioN' OF AiTiONS — {Continued.) 

Si'iziii when nccessiiry OH 

Suizin witliin ten yeiirs D!) 

After entry or right of entry 100 

Possession presumed in wliat time 101 

Occupation under written instrument \i\'l 

Under written instrument, where adverse possession ]():{ 

Actual occupation 1 0-t 

Possession under claim of title not written 1(;5 

Possession by tenant lOO 

Possession not affected by descent cast 107 

Not to apply to persons under disability 108 

Possession for forty years valid against world Ki'.t 

Otlier than real properiij 1 lo 

Within twenty years Ill 

Decree, judgment, bond, or writing secured by mortgage. . . Ill 

Within six years Wl 

Contract, liability by statute, tresj^ass, detaining or injur- 
ing goods, injury to person, relief, policies of insurance. 1 12 

Within three years 113 

Against Sheriff, &c., for penalty or forfeiture 11.'5 

Within two years 114 

For lil)el, slander, assault, battery, false imprisonment, or 

upon a statute 11-4 

Within one year 11') 

For escape 11") 

On current accounts 116 

For penalties 117 

For relief generally in ten years 118 

Not to apply in actions by State 110 

When defendant out of State Vl\ 

As to persons under disabilities VVl 

Death of person before claim barred Vl'o 

As to alien subjects 124 

AVhen judgment reversed 1 2o 

Stay of action by injunction 12G 

Disability must exist when right accrued 127 

Two or more disabilities coexisting 128 

Not to apply to bills issued by moneyed corporations 12'.t 

Nor to affect actions against directors or stockholders, i\:c. . . I.')" 

Promise to take case out of statute to be in writing i;il 



233 INDEX TO CODE OF CIVIL PROCEDURE. 

SECTIO.f. 

Lis Pendens — 

Notice of, when may be filed 153 

What to contain 153 

In foreclosure suits 1 53 

M'lieii constructive notice 153 

When it may be removed 153 

Must be followed by publication of summons 1 53 

How canceled 153 

Long Account — 

Reference ordered on, when Subdiv. 2 . . 203 

Lost Paper — 

How supplied 419 

Lunacy — 

Judge of Probate to have Jurisdiction in cases of 3T 

Lunatic — 

Judge of Probate may commit to Asylum 70 

Service of process on 156 

[See Insane Person.^ 

M. 

Mail— 

Summons to be served by, in what cases 156 

Service of notice by 410 

Xotice must be deposited in postoffice 411 

Double time for service by 412 

Exception where party charged with contempt 418 

Malicious Prosecution — 

Costs in action for 323 

Managing Agent — 

Of corporation, service of summons on 155 

Mandamus — 

Proceedings on, not affected by the second part of the Code. 452 

Marion County — 

Embraced in Fourtli Judicial Circuit 17 

Times for holding Courts in 21 



I 



IXDKX 'I'O CODM 01' CINIL IMMX III )l' i; i:. ;>Xi 

SECTION. 

Maim.houo County — 

Einbniccd in Fi)iirt1i .Tudicijil Circuit 17 

Times for liuiiliiig Courts in 21 

.MAKJilAGE — 

Not to abate action 1 42 

.M Ar;i;i kd WOmkn" — 

Costs against Sulxliv. 4. . 20C 

Need not prosecute or delend by guardian or m-xt TriL-nd. 

[Subdiv. 2.. v.]') 

Judgment against Subdiv. 4. . 2t)G 

Execution against »Subdiv. 1 . . i'6o 

Masters — 

Causes to be referred to Subdiv. 4. . 203 

Trial by •••)4 

To grant orders for publication of summons l.")(j 

make sales in what cases 30G 

appoint guardians for infants 1;JG 

appoint guardians ad litem Subdiv. 2 . . 137 

make sales of property in certain cases 30G 

Material Allegation — 

If not denied, deemed admitted 189 

Material Variance— 

What is 100 

AVhen not 101 

Merger — 

None of civil and criminal remedies 7 

Minutes — 

Special verdict or finding to l)e entered on 283 

Verdict to be entered on Subdiv. 1 . . 28G 

Motion for new trial founded on Subdiv. 4 . . 28G 

Entry on, at trial Subdiv. 2 . . 2SG 

Mistake — 

[See Pleadi)tij!^, A)ncndinents.^ 

Money Decrees — 

Made by Probate Court to be enrolloti G7 

Miauier of eurolliu''' G7 



234 INDEX TO CODE OF CIVIL PROCEDURE. 

SECTION. 

Money Decrees — {Continued.) 

To be indexed C« 

Time for enrolling (m 

To be filed in Clerk's oflSce 07 

Satisfaction of <!(» 

Not to rank as judgment unless enrolled 07 

Execution not to issue on, from Probate Court unless en- 
rolled 09 

Moneyed Corporations — 

Time of limitation not applicable to actions in certain evi- 
dences of debt of '['iO 

Time of limitation against stockholders and directors of, in 

certain cases 130 

Moneys — 

[See Deposit.] 

Mortgages — 

[See Foreclosure of Mortgages.] 

Limitation of actions on instrument secured by Ill 

Motion — 

Defined 4<r> 

Decision, within what time Subdiv. 8 . . iO'i 

Affidavits on, to be served 4(i5 

Preference of certain Subdiv. 5 . . 402 

To stay proceedings Subdiv. . . 402 

Kotice of Subdiv. 4 . . 402 

Transfer of 404 

Questions of fact arising on, may be referred. . . .Subdiv. 3. . 203 

Costs on, allowed in discretion of Court 328 

Mutual Account — 

Limitation of action on 110 

N. 

Xame — 

Fictitious, when party may be sued by 19G 

Neglect — 

Court may relieve from consequences of 105 

New Bail — 

Defendant may give 214 



INDKX TO CODK OV ('I\IL I'UOCKDI' i;K. ;i;55 

SECTION. 

Newbkkky CorXTY — 

Knil)rac'c(l in Sovoiith Jiidiciiil Circuit 17 

Tiriu's for liokliiig Courts in 24 

Nku' Matter — 

Must be replied to 1 74 

In answer or ro])ly, wlicii deemed controverted 189 

New Pkomise — 

To take case out of limitation, must be in writing i;U 

Newspaper — 

Publication of summons in I'jG 

Special sessions of Court to be advertised in 2H 

New Trials — 

In civil actions. Court may grant. 
[See Revised Stcdutcs.'] 

Motion for 287 

wben to be beard 287 

On appeal from judgment Subdiv. 2 . . 11 

Trial Justice may grant Sulidiv. 17 . . S8 

Motion for, before wbom to be made Subdiv. 18. . 88 

On appeal from inferior Court 3G8 

NOX-JOIXDER — 

[See Parties.] 

Nox-Resident — 

Service of summons on, by publication 15G 

Attacbment against property of 248 

Service of papers on 415 

Action by, against foreign corporatidns 42;3 

Notice — 

Of intention to offer copy of lost paper .^SO 

To be in writing • • • -1**8 

In summons 1 ">0 

Service of, personal, or as prescribed 4(i!t 

By nuiil." lio. 41.-) 

On party out of the State 4iri 

To Ijring i)arty into contemj)! lis 

Where ])arty appears by attorney I •"' 1 . 4 K 

Of motion (jencraUji, time of 4 1 2, 4 lU 

10 



•^3fi INDEX TO CODE OF CIVIL PROCEDURE. 

8ECTI0S. 

Notice — {Continued.) 

For judgment, for want of a reply or demurrer ITo 

Of trial not required '^'TO 

Of adjusting costs '.VHj 

Of no personal claim \h'i. 

Of lis pendens lo3 

"When it may be canceled 1 ")3 

[8oe Lix Pendens. ] 

Of appeal 339 

[See Appeal. '\ 

Lcijal, ])ublication of 421 

On motion to end reference 295 

o. 

Oath — 

Referee may administer 294 

Judges to take Constitutional, and oath against dueling 31 

Objectioxs — 

When waived 169 

OcoKEE County — 

Embraced in Eighth Judicial Circuit 17 

Times for holding Courts in 25 

Occupation — 

Of lands, when deemed to be under legal title 104 

Under written instrument 103 

Offer — 

Of defendant to compromise the whole or part of the action . 386 
Defendant may. before trial or verdict, offer to allow judg- 
ment for a certain sum and costs 386 

Acceptance of 386 

When deemed withdrawn 386 

Effect of, if plaintiff do not recover a more favorable judg- 
ment 386 

To liquidate the damages 387 

Effect of acceptance or refusal of such 388 

Omissions — 

Court may supply, in any proceedings 195 

Of necessary acts to perfect appeal. Court may relieve against . . 

339, 349 



IX HEX TO CODE OE C'TVTL PKOrEOT^llE. 2:}: 

_ SECTION. 

Opkx Account — 

Lirnitatidii of notion on Hi; 

Oraxg?:i{UUG County — 

Embraced in First Judicial Circuit 17 

Times of holding Courts in IH 

Order — 

Definition of 4(il 

Review of, on aj)peid from judgment 335 

By whom and where made Sul^div. 3 . . 402 

Made out of Court, how vacated or modified :]:}<; 

Staying proceedings .Subdiv. 0. . . 4U2 

Copy affidavit to be served with 4<)5 

To show cause 404 

Appeal from , 11, 33 '> 

For publication 1 ,5fJ 

For arrest 201 

For new trial 280 

P. 

Papers — 

Service of, how made 400 

by mail 410 

When not required to be served on defendant 414 

On party out of the State 415 

Where party appears by attorney, to be on the attorney 411 

To bring party into contempt 418 

Admission of genuineness of 3sD 

Lost or withheld, how place of su})plied 41!) 

Transfer of, on change of place of trial 147 

Particulars — 

Bill of 179 

Parties to Actions — 

Provisions as to, applied to Trial Jut^ticcs' Court. 

[Subdiv. 15.. 8S 

How designated no 

Provisions as to 132 

Party in interest to sue 132 

By grantee of land held adversely 132 

Bv assifxnees 133 



538 IXDEX TO CODE OF CIVIL PROCEDURE. 

SECTION. 

Paktiks to Actions — (Con fi/iii (■</.) 

])y administrators 1 iU 

By executors \'M 

By trustees of express trusts i;54 

]iy parties authorized by statute to sue 134 

On bills and notes, &c 141 

liy and against married women 13.') 

Plaintiff 13s 

Defendant 131t 

By and against infants 130 

Who to be joined as 1 40 

Death of, pendente lite 142 

^Marriage of. pendente lite 145 

Transfer of interest of 1 42 

Court may determine controversy between 143 

When they may interplead 1 43 

Demurrer for defect of Subdiv. 4 . . 105 

AVhen others may be ordered to be brought in 143 

Examination of, as witnesses 3'.>1 

Defect of, how taken advantage of Subdiv, 4. . 1G5 

Service of notices and papers on 40*J 

Parties to Appeal — 

How designated 338 

Paktitiox — 

Place of trial of action for Subdiv, 2 . . 144 

Guardian for infants Subdiv. 2 . . 137 

Publication of summons to parties having lien or interest. . . 156 

Party — 

[See Parties to Actions.'\ 

Penalties — 

Limitation of action for 114, 117 

Against directors or stockholders, &c 130 

Action for, where to be tried Subdiv. 1. . . 145 

Pending Suits — 

Notice of 153 

Performance — 

Of conditions precedent, how pleaded 183 



TXDKX TO CODK ()!• ('I\IL I'Cf )( 'i:i )('i;K. 2:};) 

SECTIOX. 

ri:iusiiAi!M; rKOl'KltIV — 

Under attachment, to bi- sold 2'h) 

Person — 

Execution apiiiist the 308 

1' !•: K S () N A L C L A I M — 

Notice of no. to bo served with summon.s I'yZ 

Notice of no, elTect of defending after 152 

Personal Property — 

Definition of 44.") 

Time for commencing uction for taking, detaining or injur- 
ing, or for recovery of possession of Subdi v. 4 . . 112 

Arrest in action to recover Subdiv. 2 . . 2U0 

Judgment in action to recover 290 

Distrained, action for recovery of, where to be tried. 

[Subdiv. 4.. 144 

Doing damage, answer 187 

Execution against 300, 309 

Chiim and delivery of 227 

[See Claim and Delivery.] 

Petition — 

Proceedings in Probate Court by comphiiut or (;4 

Pickens County — 

Embraced in Eiglith Judicial Circuit 17 

Times for holding Courts in . 25 

Place of Trial — 

Of actions to recover real property, or any estate or interest 
in real property, or to determine riglit or interest in 

real property Subdiv. 1... 144 

For injuries to real property Subdiv. 1 . . 145 

For ])artition of real property Subdiv. 2. . 144 

To foreclose a mortgage of real property Subdiv. :> . . 1 44 

To recover personal property distrained for any cause. 

[Subdiv. 4.. 144 
To recover a penalty or forfeiture imposed l)y statute. 

[Subdiv. I . . 145 

Against a public ofTlcer or his deputy Subdiv. 2 . . 1 l."> 

In other actions, where defendant resides 1 l<'. 

May be cliaiifjed 1 1 ; 



240 IXDEX TO CODE OF CI VI I. PROCEDURE. 

SECTION. 

Plaintiff — 

[See Parties to Actions, Pleadings, Cofnpldin/s.] 

Pleadings — 

In Courts of Record, prescribed in Code. ICl 

The complaiut lii'Z 

Complaint, wluit to contain 1C3 

The demurrer 164 

The answer 1 70 

The reply 174 

Mistakes and Amendments. [.See Amendments.^ 

To be subscribed 177 

To be verified, except demurrers 177 

How verified 178 

AVhen verification may be omitted 178 

When agent or attorney may make the verification 178 

Account is to be stated in 179 

Copy account to be furnished 179 

Further account may be ordered 1 79 

Bill of particulars. Court may order to be furnished 179 

To be liberally construed 180 

Irrelevant or redundant matter may be stricken out 181 

Indefinite or uncertain, may be ordered to be made more 

definite and certain 181 

Judgments and determinations, how pleaded 182 

Conditions precedent, how pleaded 183 

In action or defense founded on instrument for the payment 

of money 183 

Private statutes, or rights derived therefrom, how pleaded. . 184 

Libel and slander, how stated in complaint 185 

Answer in actions for libel and slander 180 

In actions to recover property distrained, doing damage. . . . 187 

What causes of action may be joined 188 

Allegations not denied, when deemed true 189 

New matter m answer (not a counter-claim) is not to be 
deemed controverted as upon a direct denial or avoid- 
ance 189 

The like of new matter in a reply 189 

Cannot be used as evidence in criminal proceedings 178 

Party may be sued by a fictitious name 196 

Errors and defects not affecting substantial rights to be dis- 
regarded 197 



iXDKX 'I'o ('()i)K oi' ('i\iL I'i:i)('i:i)('i;k. 2-ii 

flECTJOK. 

1Mj;ai)1N(;s — {('(niliinicd.) 

Supplemental pleading, when allowed 108 

AVhen amended, to l)e answered anew HIT 

Court to he furnishi'd with eo])y of lijsi 

To be filed 410 

Motion for judgment V,') 

In Trial Justices' Courts S,S 

In Probate Court 04 

\^GQ A)iswer, Cuinplaitit, Dennirrer, Ji/'j)/i/.\ 

POSSESSIOX — 

0/ la)ul, wlicii presumed 101 

by tenant 100 

Postponement — 

Cost on application for 3'2T 

Practice — 

In Probate Court, to conform to Common Pleas 04 

I'KELIMINART INJUNCTION — 

[See Injunction.'] 

Private Statutes — 

IIo w pleaded 1 84 

Probate Court — 

Established ;34 

Sessions of 34 

To be a Court of record 35 

Judge of, may appoint a Clerk 35 

Duties of Clerk of 30 

Clerk not to practice law .* 35 

Jurisdiction of Judges of 37, 38 

Of County where will is proved to have settlement of estates. 40 

To have jurisdiction in proceedings relating to guardians, &c. 38 

May issue warrants and processes 45 

To punish for contumacy 40 

To issue commissions to examine witnesses 47 

First taking cognizance of settlement of estate to have exclu- 
sive jurisdiction 48 

Jurisdiction of, not to be collaterally impeaclicd 40 



:U'Z IXDKX TO CODE OF CIVH. PROCEDTJRE. 

SECTION. 

Pkobate Co I' ht — ( Co fit in uccl. ) 

To have the appointment of guardians of minors in certain 

cases 50 

To have jurisdiction of ward's estate and settlement of guar- 
dian's accounts 51 

Time for holding 52 

To be open at all times for transaction of certain business. . . 53 

Adjournment of the 54 

Appellate jurisdiction of Circuit Court over 55 

Appeal to Circuit Court to be taken within fifteen days 57 

Proceedings in, stayed by appeal 59 

Proceedings in, to be commenced by petition or complaint. . G4 

Supreme Court may make rules for 65 

May issue executions against property CU 

Administration and probate of wills 30 

May marshal assets 40 

May sta}' actions or proceedings against executors, &c 40 

"VN'hen to grant discharge to administrators, kc 41 

Money decrees of, to be enrolled 67 

Manner of enrolling 67 

To keep index to decrees 68 

Judge of, may punish for contempt 66 

not to have voice in determining appeal 63 

may commit to Lunatic Asylum 70 

Supreme Court, to have appellate jurisdiction over 56 

decision of, to be certified to 62 

[See Appeal.] 

Practice in, to conform to Common Pleas 64 

Probate Judge — 

[See Judr/e of Probate Coini.] 

Process — 

[See tSunnnous, Service of.] 

Probate Judge to frame in certain cases 69 

Sheriff to execute, of 69 

Prohibition — 

Code not to apply to 452 

Promise— 

When to be in writinff 131 



INDEX TO CODK OF CINII, IM.'OCKDriM-:. 243 

SECTION. 

Proof — 

Of service of summons 1 "'^^ 

Of service of nnu'iidcd coniplaiiil, &.(• 1''7 

Failure of l'-»--i 

Of laws of other States, &c 422 

Of iniblic records of other States 422 

PiiorERTY — 

Keal. defined 4-14 

Personal, defined 445 

Arrest for fraudulently taking or detaining Suhdiv. 2. , 200 

Execution against 309 

Distrained doing damage 187 

[See Claim and Deli very. ^ 

Provisioxal Remedies — 

Allowance of, gives jurisdiction 100 

Motion to vacate or modify, to have preference. .Suljdiv. 5. . 402 
[See Arrest, Attachment, Claim and Delivery, Injunction, 
Receivers, Remedies.^ 

PUBLICATIOX — 

Of application for discharge by trustee, &c 41 

Of legal notices, time for 421 

Of notice of motion for leave to issue executions o(i4 

Of advertisement of summons, how proved l.V.i 

Service of summons by, in what cases 1 ")G 

Service of summons by, order for 15G 

Personal service out of State 15t! 

AVhen defendant allowed to defend after 150 

Complaint must be first filed 150 

AVhen service complete after 1 58 

Proof of 15l> 

Application for judgment after 267 

Judgment after service by 207 

Q. 

Qualification — 
[See^r/zY.] 

Q I' EST I ox OF Fact — 

May be referred 202 

Trial of 2:i» 



244 INDEX TO CODE OF CIVIL PROCEDURE. 

BECriON. 

Qlo W a hu a xto — 

Writ of, abolished 4i4 

R. 

Railroad Companies — 

Service of summons on 1 ")5 

Real Estate — 

[See Real Proper/t/.l 

Real Party tn Interest — 

Every action to be brought in name of 132 

Real Property — 

Definition of 444 

"When title to, need not be set forth Ls7 

When title to, in question TO 

Lien on, by attachment 253 

Adjudged to be sold, where to be sold 30G 

Kotice of lis pendens in actions affecting 153 

Place of trial of actions relating to . . .Subdiv. 1 . . 144 

[See Conflicting Claims, Partition, Limitations of Actions.^ 

Receiver — 

In what case he may be appointed 2<i5 

Commissions to Subdiv. 4 . . 265 

In supplementary proceedings, when may be appointed 318 

Order appointing, to be filed 318 

Subject to order of the Court 318 

Only one to be appointed 318 

Record — 

Of foreign State, how proved 422 

[See Judgment Eoll.] 

Recovery of Personal Property. 
[See Claim and Deliver i/.] 

Reducing — 

Amount of bail 225 

Referee — 

How chosen 205 

Mode of trial by 204 

Powers of 204 



INDKX TO ('OI)K OF ('I\II, IM.m )( 'I'.OrRK. ^i:. 

8ECT1011. 

KkFEBEE — [Cotitiinicil.) 

Report of ii04 

Within what time to report ^95 

To administer oaths ■.'94 

Ke])ort has ellect of special verdiet :i94 

Interest on report of 325 

In proceeding supplementary to execution 320 

Judge not to act as. in certain actions 205 

Rei'khence — 

By consent 292 

By compulsion 293 

When ordered 293 

Of issues 293 

To take an account 8ubdiv. 2 . . 293 

Of questions arising on motion, &c Subdiv. 3. .293, 402 

On judgment for want of answer 267 

In proceedings supplementary to execution 320 

To ascertain damages on injunction 245 

When action to proceed as if none ordered 295 

Of other than the issues, proceedings on Subdiv. 3 . . 293 

To be to Master in Counties where office of exists. 

[Subdiv. 4.. 293 

Relief — 

Demand of Subdiv. 3. . 103 

In cases of mistake 195 

When there is no answer, extent of 297 

For judgment taken by mistake, &c 195 

To defendant 296 

Time of limitation in certain actions for 112, 118 

Remedies— 

Division of 1 

Civil and criminal, not merged 7 

[See Provisional Remedies.^ 

Remittitl'F{ — 

From Supreme Court 12 

To be certified to Probate Court, when 02 

Eemovai. — 

Of cases from o7ie Trial Justice to another Subdiv. I'.t. . 88 

Repeal — 

Of inconsistent statutory provisions 449 



UG IXDEX TO CODE OF CIVIL PROCEDURE. 

SECTION. 

Reply — 

A\'lu'n to he put in, and wliat to contain 1 T4 

Doniurrer to 1 TO 

Motion for judgment for want of IT.") 

When Court may order a 1 T4 

Supplemental, when mu}' be put in 108 

New matter in, deemed controverted 180 

Frivolous, judgment on 208 

[See Demurrer.] 

Reports — 

Of foreign States presumptive evidence 422 

Of Referees, what to state 204 

exceptions to 204 

Respondent — 

Adverse party in apjieal, known as 338 

Restitutiox — 

[See Judgment.] 

Return — 

Of summons, Sheriff to make 154 

Of execution 310 

Reversal of Judgment — 

Cost on 3T0 

Not allowed for errors or defects not affecting the merits. . .. lOT 

Time for commencing action after 125 

[See Judgment.] 

Review — 

Of question of law and fact arising on a trial of fact by the 
Court, how obtained Subdiv. 2 . . 200 

Richland County — 

Embraced in Fifth Judicial Circuit IT 

Times for holding Courts in 22 

Rules — 

Supreme Court may make, for Probate Courts fio 

All, inconsistent with Code repealed 449 

Judges to meet to revise and make new 450 

Supreme Court to make 450 



fXDKX TO fODE OF C'lVir. IMJOCKDrRK. 247 

SECTION. 

RuLKS — ( Continued. ) 

In Trial Justices' Courts f^H 

.Iiulijt' of Prol)iite to frame, when none j)rescril)e(l '19 

Of const rurt inn 448 

s. 

Sale — 

Of property under execution 30G 

Of property, under orders of Probate Court 306 

by Clerk 306 

by Master 306 

Of evidences of debt taken on attachment 2r)9 

Of perishable property 255 

Of vessels 255 

Conveyance to purchaser, by officer making oOO 

Satisfactiox of Execution' — 

When debtor to judgment debtor may make 313 

What property may be ordered to be applied to 317 

Return of, Sheriff to make 310 

Scire Facias — 

Writ of, abolished 424 

Sealed Instruments — 

Time for commencing actions on Subdiv. 2 . . Ill 

Second Circuit — 

Counties composing 17 

Times for holding Courts in 19 

Security — 

On arrest, plaintiff to give 203 

On attachment, plaintiff to give 251 

By defendant on return of property to him 263 

On claim and delivery, by plaintiff 230 

By defendant '■^32 

On injunction, where no special provision on the subject. . . . 243 

To suspend business of corporation 245 

On appeal to Su])reme Court 34(5. 352 

On taking a judgment for want of an answer. . . . Subdiv. 2 . . 267 

Seduction — 

Rule as to costs in actions for 323 



248 INDEX TO CODE OF CIVIL PROCEDURE. 

BE<T10.V. 

Service — 

Of summons, by whom made l."(4 

Time of \'A 

How made 1 ')5 

By publifution lo'i 

On unknown defendant 150 

On corporation Subdiv. 1 . . ] 55 

On a minor Subdiv. 2. . 155 

On a person of unsound mind Subdiv. 3 . . 155 

On one temporarily out of the State Subdiv. 3 . . 15*; 

On joint and several defendants 157 

Time for, may be fixed 154 

When complete by publication 1 5.s 

Proof of 1 5;) 

Gives jurisdiction IGO 

Voluntary appearance equivalent to l'!0 

Is commencement of action 148 

Of order of arrest 204 

Time to answer after 204 

On corjjorations, provisions as to, applied to Trial Justices' 

Courts Subdiv. 15.. 88 

Of complaint, with summons 151 

notice of no personal claim 152 

After demand 151 

Dismissal of judgment for default in Subdiv. 4. . 296 

Of notices and other papers on party or attorney 408, 409 

How made 409 

By mail 410, 411 

On a party residing out of the State 415 

On attorney for the party 41 T 

To bring a party into contempt 418 

Xo costs where made other than by Sheriff 154 

Set-Off — 

Assignee of right of action takes subject to 133 

Exceeding plaintiff's demand 285 

Settlement — 
[See Case.] 

Seventh Circuit — 

Counties composing 17 

Times for holding Courts in 24 



INDEX TU CODE OF ('I\IL I'UOCKDriM:. 2VJ 

8KITION. 

Severance — 

Of actions ] <i3 

SlIAM — 

Answers and defenses may be stricken out 1 73 

Shehiff — 

In civil actio ns, duties of, &c., incident to arrest : 

To execute order by arresting defendant 20G 

To deliver coj^ty order of arrest and atlidavit to defendant. 205 

To accept bail or deposit 207 

To detain defendant at instance of bail 'ZO^i 

To deliver order, with return endorsed, and certified copy 

of undertaking of bail, to plaintiff "213 

When exonerated from liability :.' 1 ;3 

To give defendant a certificate of deposit -.'18 

To pay deposit into Court 219 

"When liable as bail 223 

Proceedings on judgment against, as bail 2-^:3 

Liability of bail to 224 

Action against, to be within three years 1 13 

Action against, for escape to be within one year 115 

To return summons 1 54 

Proof of service of summons by 159 

To provide rooms, &c., for Supreme Court 15 

Maybe ordered to take property, &c., and deposit it in 

Court Subdiv. 5 . . 2G5 

Duties of, incident to attachment : 

To execute warrant of attachment 253 

To make an inventory 254 

Inventory to be signed and returned 254 

To take legal proceedings to recover debts, credits, &c,, of 

the defendant 254 

To sell perishable property 255 

To sell vessels 255 

As to property incapable of manual delivery 257 

To satisfy judgment out of property attached 259 

As to residue of attached property after satisfaction of 

judgment Subdiv. 4. . 259 

May apply to Court for leave to sell evidences of debt. 

[Subdiv. 4.. 259 

May permit actions to be in name of phiintilT 2(iO 

On judgment for the defendant 2t;i 



250 TXDEX TO COPE OF CIVIL PROCEDURE. 

Sheriff — {Continued.) 

Duh'i's of, incident to aitnchtnent — (Continued): 

On discharge of the attachment --iOv* 

To return warrant and proceedings thereon 264 

Dutiet, S-c, incident to claim and delivery of personal prop- 
erty : 

To take property 230 

To deliver to the defendant a copy of the atiidavit, notice 

and undertaking 230 

Responsible for plaintiff's sureties 231 

When to deliver property to the plaintiff 232 

"When to deliver property to the defendant 233 

When responsible for defendant's sureties 233 

Proceedings by, where the property is concealed in build- 
ing or enclosure 23.3 

To keep property in a secure place 236 

When property claimed by third party 237, 255rt 

When to file notice and affidavit, with proceedings thereon, 238 

Duties of. dec, incident to execution : 

To make all sales under 306 

To make return of, at each term of Court. . . .Snbdiv. 2 . . 31(i 

Return, when partially executed Subdiv. 2 . . 310 

JCuUa bona return Subdiv. 2 . . 310 

Penalty for failure or neglect to make return.. Subdiv. 2. . 310 
To execute process of Probate Court GO 

Sixth Cikclit — 

Counties composing 17 

Times for holding Courts in 27 

Slander — 

[See Libel and Slander.] 

Spartaxbukg Couxty — 

Embraced in Seventh Judicial Circuit 17 

Times for holding Courts in 24 

Special — 

Finding, when Court may direct 2s4 

Jurisdiction, judgment of Court or oflicer of, how pleaded. 182 

Proceedings defined 3 

appeal from final order in, to Supreme Court. 

[Subdiv. 3.. 11 
costs of reviewing the decision of an inferior 

Court in 331 

examination of witnesses in 400 



TXDFA' TO CODE OF CIVTF PRO( 'KT)UHE. ^'51 

SECTION. 

Special — {Coutinut'tL) 

Session.^ of Cirruil ConrL Oiroiiit Jiu];^os may lioltl '^8 

Cliiuf Jiiiitico of Supreme Ctnirt 

may direct holding of 28 

Older for, to he entered of record. 28 

\'er(lict 283 

[See Verdict.] 

Verdict to be fded 283 

lleferee's report to have effect of 204 

State — 

When action cannot bo brought by the grantee of the nO 

Effect of absence from, on time of limitation 121 

AVhen it will not sue for real property 95 

To sue within twenty years in certain cases !i5 

Time of limitation applies to actions by 119 

When it cannot sue or be sued in Trial Justices' Courts 78 

Injunction at instance of, to suspend business of corporations. 245 

Costs in actions by, or in name of 430 

Actions in name of 425 

Actions for forfeiture of property to 443 

Statute— 

Action upon, for penalty or forfeiture 114 

Private, how pleaded 184 

[See Limitation of Actions.] 

Statutes — 

Construction of 44S 

How proved 4'.*2 

Stay — 

Of execution, h\j appeal to Supreme Court 340 

Of proceedings, order for, for more than twenty days, cannot 

be granted except on notice SuIkHv. s. . 402 

Effect of, on time of limitation 1 2*1 

Stekoghapiier — 

To be appointed 2T7 

His compensation 277 

Duties of 2rr. 278 

Charges of, may be taxed as disbursements. 278 

Stockholder — 

Limitation of actions against 130 

17 



252 INDEX TO CODE OF CIVIL PROCEDURE. 

SEcnos.'. 

SunMiTTixG Controversy — 

Without action 374 

Judgment iks in other cases, but without costs 375 

Judgment roll in 375 

Judgment on, may be enforced or appealed from 370 

Subscribing — 

Summons 1 4r> 

Pleadings 177 

Substituted Service — 

Of process 15G 

Substituting Parties — 
[See Parlies to Act ions. ^ 

Summons — 

Actions to be commenced by service of , 148 

Form of, ordinarily 149 

Form of, when served without cojiy complaint 151 

Form of, lohen served by publication 1 ">(» 

Notice to be inserted in 150 

Service of, by whom it may be made 154 

Commences action 1 "^'O 

How it must be served 1 r)5 

On coqjoration Subdiv. 1 . . 1 55 

On minor under age of fourteen Subdiv. 2 . . 155 

On person judicially declared to be of unsound mind, &c. 

[Subdiv. 3.. 155 

In other cases Subdiv. 4 . . 1 55 

On unknown defendant in foreclosure action 15(> 

Party subscribing may fix time for 154 

By publication, when ordered, and how made 150 

On joint and several defendants 157 

To revive judgment 309 

To create judgment lien 309 

To renew execution 310 

Service of, Avhen complete 158 

Proof of service 159 

Effect of, to confer jurisdiction 1 CO 

Voluntary appearance is equivalent to personal service ino 

In proceedings against joint debtors 377. 378 

From Probate Court 04 



INDEX TO CODE OF CINIL IMJOCKDriM-:. 203 

8KCTI0N. 

SuMTKK County — 

Embraced in Third Judicial Circuit IT 

Times for holding Courts in 2ii 

SrPPLKMKNTAL — 

Pleadinfi, when alhnvcd 10s 

Coiiijiht'nit, action may l)e continued by 142 

SUPPLEMEXTAUY PROCEEDINGS — 

AVhcii an order for the examination of tlie judgment debtor 

may be applied for Sulxliv. 1 . . ."5 12 

Arrest of defendant upon Subdiv. 4 . . ;j 1 2 

Examination upon order Subdiv. 2. . 312 

Ay a i nut dcbtur af juilyment debtor, or of those havimj proji- 

erty belonyiny to him ;313 

Witnesses, how required to appear and testify in 31 o 

Examinations in, to be on oath 310 

AVhat property may be ordered to be applied to execution in. . . 317 

Appointment of receiver in 31 s 

Prohibiting transfer of property 311* 

Where a third party claims property alleged to be tlie prop- 
erty of the judgment debtor 31 U 

Where the alleged debtor to judgment debtor denies his 

indebtedness 3111 

Reference may be ordered in :)2(» 

Disobeying order in 322 

Supreme Court — 

Appellate jurisdiction of, generally 11 

In Probate matters .")(j 

Additional terms of liJ 

Sessions of 13 

Opinions of, how pronounced 14 

Rehearing in 14 

Rooms, fuel, stationery, tScc, for l."> 

Sessions, where to be held 10 

May make rules for Probate Court 05 

May make general rules 4.-I1 

Causes in which State a party preferred 13 

Sureties — 

[See Security, Undertakiny.^ 



254 INDEX TO CODE OF CIVIL PROCEDURE. 

T. 

SEcno.v- 

Telegraph Companies — 

Service of process on agent of Subdiv. 1 . . 1 55 

Testimony — 

Of parties 391 

Of witnesses 39'J, 40(> 

Third Circuit — 

Counties composing 17 

Times for holding Courts in 20 

Time- 
To serve complaint after demand 151 

To answer or demur 149, 151 

To answer or demur to amended comjilaint 107 

To answer after service of order of arrest 204 

To reply 174 

AVithin which to amend of course 1915 

For service of notices, &c 41.'3 

For appeal 345 

[See Appeal.] 

Enlarging 405 

ffoio computed 407 

if last day be Sunday 4(>7 

For publication of legal notices 421 

Double, when service by mail 412 

For commencing actions in general 94 

Objection that action not conmienced in time must be taken 

by answer 94 

To place cause on calendar 2TG 

Title— 

Of action not changed on appeal 338 

Xeed not be set forth in answer to action to recover property 

distrained damafje feasant 187 

Trial Justices have no jurisdiction of actions involving, to 

real estate 78 

Answer of, in Trial Justices' Courts 79 

Certificate that it came in question 79 

Costs when it comes in question 81 



TXDI'X TO roPK OF C'lVlF. riJOrKDT'IJK. 255 

BECTIO.N. 

Tkanscript — 

Of Trial Justice's jiid^MiicTit H7 

Of jiidgineiit in Oomiiion IMeas '.Hi'i 

Of money decree from J'robiite to Circuit ('(»iirt G!> 

Tkaxsfer — 

Judge may pn)]ii])it, of property in certain cases, .Subdiv. 4. 

312, 318 

Of interest not to abate actio7i 142 

Trespass — 

Oji real proper! }i, time for commencing action for 112 

Trial— 

In civil octions, definition of 2T3 

Of question of fact not in issue on pleadings Subdiv. 3. . 2'.)3 

Place of 144 

[See Place of Trial.'] 

Mode of 274 

Separate, between the plaintiff and one or some of the de- 
fendants, may be liad 280 

Copy summons and pleadings to Court on 281 

Amendments at 1 03 

Court to be furnished with copy pleadings, etc 2<si 

Set-off established at, exceeding plaintiffs demand 285 

Stenographer to take evidence 278 

Dismissal of comi)laint for not proceeding to 290 

By jury 280 

How waived 288 

By the Court, of a question of fact, decision to be given in 

writing, and be filed with the Clerk within sixty da^'s — 289 

Finding of Judge on, what to contain 21»0 

For the purpose of an appeal, either party nuiy excejit to a 

decision on a matter of hiw arising on Snbdiv. 1 . . 290 

Questions of law, how and when reviewed Sul.<liv. 1 . . 290 

Question of fact, how an<I when reviewed Subdiv. 2. . 290 

In Probate Court, to conform to, in Common Pleas (i4 

Trial Justice's CoriiT — 

In civil actions, jurisdiction of 71 

Rules in 88 

Pleadings in Subdiv. 2 . . 88 

Answer of title in 79 



2:)G INDEX TO CODE OF CIVIL PROCEDURE. 

sKcnos. 

Trial Justice's Court — {Continued.) 

Variance Subdiv. 10. . 88 

Amendments Sulxliv. 11.. H^ 

E.xecution Suljdiv. 1 •-.' . . 88 

To furnish transcript of judgment 87 

Judgment by confession in Subdiv. 8. . 71 

Proceedings in action to recover personal property. 

[Subdiv. 11.. 71 
To have jurisdiction in matters between landlord and ten- 
ant Subdiv. 10.. 71 

Judgment of, transcript of, may be filed and docketed with 

County Clerk 87 

Effect of filing such transcript 87 

Time for service of process in Subdiv. IG . . 88 

New trials in Subdiv. 17.. 88 

Motion for new trial when to be made Subdiv. 18. . 88 

"When to transfer cases Subdiv. 10 . . 88 

Trustees — 

Appointed by will, Probate Court to have jurisdiction of . . . . 38 

When personally liable for costs 330 

Of express trusts may sue without joining party in interest. . 134 

Who is such trustee 1 34 

Costs in actions by or against 330 

u. 

Ul^DEETAKIXG — 

On answer of title in Trial Justices' Courts 80 

On appeal 346, 347, 350, 352, 354 

To be filed with Clerk 357 

To be delivered to parties 354 

On obtaining order of arrest 203 

On obtaining warrant of attachment 251 

[See Security.] 

UxKNOwy Defendant — 

How served with summons loG 

Union County — 

Embraced in Seventh Judicial Circuit 17 

Times for holding Courts in 24 

Unreasonably Defending — 

Costs for 152 



TXDKX TO CODH OF ("I\'1L IMIOCllDrHK. '^57 

HKCTION. 

UsiKPINC OfKICH I)U l-'UANCHISE — 

Action for i^H. 4:57 

V, 

Vacating — 

Ortler of arrest 204, 225 

Order made (Jiit of Court 33G 

Attjichment 20:} 

Iiijuiu'tion 240 

Provisional remedy, motion for, to luive preference 40;^ 

Charter of corporation, action for 420 

Enrollment of money decree 07 

Variance — 

When not material 190 

Amendment of material 192 

In Trial Justices' Courts B8 

Verdict — 

General and special, defined 282 

What, jury may render 282 

Special, controls general 284 

Referee's report to have effect of 204 

Assessing defendant's damages 285 

Subject to the opinion of the Court 286 

Judge may entertain motion to set aside 286 

Entry of 286 

Entry of judgment on 286 

Interest on, when allowed • • • -325 

Death of party after 142 

Verification — 

Of pleadings, when necessary 177 

How to be made 1 78 

When it may be omitted 178 

By the attorney or agent 178 

When corporation is a party 178 

Voluntary Appearance — 

Equivalent to personal service 100 

W. 

Waiver — 

Of defense 100 

trial by jury 288 



258 INDEX TO CODE OF CIVIL PROCEDURE. 

SECTION. 

Warrant — 

[See Attachment, Arrest and Bail.'] 

Warrants and Process — 

Judge of Probate may issue 45 

Wife — 

Not to disclose coniniunications made by husband. 

[Subdiv. 2 . . 400 

Will— 

Where to be proved 30 

Withheld Papers — 

How supplied 419 

WlLLIAMSBUEfi COUXTY — 

Embraced in Third Judicial Circuit 17 

Times for holding Courts in 20 

Witnesses — 

Comjyelhd to ctttend, on trial by referees 204 

On supiDlementary proceedings 315 

Allowance to, in j^roceedings supplementary to the execution. 321 
Punishment of, for disobedience to orders of Judge or Re- 
feree 322 

Change of place of trial for convenience of 147 

Parties to action may be 390 

Interest not to disqualify 400 

Compelling parties to attend as 303 

Co-plaintiff or co-defendant may be examined as 308 

Examination of, on motion 402 

In supplementary proceedings 315 

In special proceedings 400 

Assignor of thing in action may not be 400 

Party may not be 400 

Persons having legal or equitable interests to be affected may 

not be 400 

Husband or wife may be Subdiv. 1 . . 400 

[See Evidence.] 
Probate Court may issue commission to examine 47 

Words — 

Construction of 444, 445, 446, 447 



Txnr:x to code of (tmt. prior iinrRR. 259 

SECTION. 

A\ iMTrxc; — 

Admission iind inspection of 389 

Wkitt e n I x sr u u m e x t — 

rieiidiugs iu uctiou on 88, 183 



Y. 

York Couxty — 

Embraced iu .Sixtli Judicial Circuit 17 

Times for holding Courts iu 23 



CONTENTS OF THE C KOIINAL STATUTES. 



TITLE I. 



Criminal Procedure. 

PAffi:. 

CnAPTKR I. Arrests, Exaniination, Coininitment and Bail, . . •^<»3 

Chapter II. Jurisdiction of Trial Justiecd and their Courts. 20G 

Chapter III. Proceedings in Courts of Sessions 274 

Chapter IV. Rights of Persons Accused -276 

Chapter V. Trials "377 

Chapter VI. Appeals and New Trials 281 

Chapter VII. Judgment and Execution 284 

Chapter VIII, Habeas Corpus 287 

TITLE IL 

Crimes and Misdemeanors. 

Chapter IX. Offenses Against the Person 294 

Chapter X. Offenses Against Property 311 

Chapter XL Offenses Against Public Policy 328 

Chapter XII. Offenses Against Public Peace 332 

Chapter XIII. Offenses Against Public Justice 338 

Chapter XIV. Offenses Against Chastity, Morality and 

Decency 347 

Chapter XV. Offenses Against Public Health 350 

Chapter XVI. Offenses of Selling Property Under Lien, 
Violation of Contracts, and Regulation of 

Trade in Certain Cases 355 

Chai'ter XVII. Forgery and Offenses Against the Currency . . 3G2 

Chapter XVIII, Offenses by Certain Officers 3<J5 

Chapter XIX. Violations of the Provisions Regulating the 

Establishing and Repairing of Highways. 370 
Chapter XX. Offenses l)y Railroad Companies, their Agents 

and Employees 387 

Chapter XXL Violation of the Laws Regulating the Assess- 
ment and C'ollection of Taxes 388 

Chapter XXII. Bastardy 390 

Chapter XXI 1 1. Vagrancy 392 



CONTFA'TS ()V THE CRI.MIXAL STATUTES. 

PAGE. 

Chapter XXIV. Non-observance of the Lord's Day and the 

Disturbance of Religious Worship .'V.t3 

Chaitkk XXV. (iunibling 3W4 

CiiAPTKii XXVI. Pn^tectiou of Fish, Oysters, Animals, &c... ;39'J 
Chapter XXVII, Violation of Laws Regulating the Sale of 

Spirituous Liquors 408 

Chapter XXVIII. Violation of the License Laws by Insurance 
and other Companies, Emigrant Agents, 
Owners of Shows, Persons Selling Pis- 
tols, &c 430 

Chapter XXIX. Violation of the Law Concerning Sailors, 

Immigrants, &c 433 

Chapter XXX. Cruelty to Animals 43G 

Chapter XXXI. Miscellaneous Offenses 439 

Chapter XXXII. Felonies, Accessories, Aiders and Abettors . . 441 

III. 

Prisons and Imprisonment. 

Chapter XXXItl. Jails and Prisoners 442 

Chapter XXXIV. St^ate Penitentiary 447 

TITLE IV. 

Inquests. 

Chapter XXXV. Inquests on Dead Bodies. 457 



CRIMINAL LAW. 



TITLK T. 

CRIMINAL PROCEDURE. 



Chapter 
Chapter 



Their 



I. — Of Arrests, ExaDu'/ia/io/i, Coniinifment and 

' Bail. 
II. — Jurisdiction of Trial Justices and 

Courts. 
III. — Proceed inr/s in Courts of Sessions. 
IV. — Of the Riyltts of Persons Accused. 
y.—Of Trials. 
YI. — Of Appeals and Kew Trials. 
Chapter VII. — Of Judgment and E.vecution. 
Chapter VIII. — Of Habeas Co?yus. 



Chapter 
Chapter 
Chapter 
Chapter 



CHAPTER I. 

Of Arrests, Examination, Commitment and Bail. 



Skc. 

1. Who mny arrest a felon, and where. 

2. When citizens may arrest, and the 
means to be used. 

3. No civil process to be executed on any 
person attending musters. 

4. ()nic(>rs may L«wue warrants for arrest 
of fugitives from justice charged wltli 
crime, and shall transmit copies of pa- 
pers to the Governor. 



8EC. 
6. Agents to receive three dollars a day 
and expen.ses ; how paid. 

6. Proceeding for the discharge of prosecu- 
tor on his own recojcmlzance In crimi- 
nal cases not <'apltal. 

7. Witnesses may be discharged In like 
manner. 

8. Penalty for failure to appear. 
I 9. Clerk's costs. 



Section 1. (~'>^>.) Upon view of a felony committtMl, or who may ar- 
il pon certain information that a felony has been comniittetl, any "Tiere!^ '""' '^'^ 
person may arrest the felon and take him to a Judge or Trial isco, xiii.. 406, 
Justice, to be dealt with accordin*? to law. 

It is .snfflrient to ju.stify an arrest in tlii.s State, by private persons, without 
warrant, to show that priimi fucii- a ft>lony has been coininitteil in a sist*»r State 
and the party arrested is the peri)etrat<n-.— .sVij/c v. Anih'vson, 1 Hill. ;!-'T. when citizens 

Sec. 2. {2617.) It shall be lawful t'^r any citizen to aiTest any uum,,",'^",^ uf bo 
pei'siui ill tlie ni^^bt time, by such etlicieiit means as the dari^ness ""'^"'j^' .jg 



\ 



2G4 THE CRIMINAL STATUTES 

A. D. !«)«. 

' Y ' and tlie j)rubal)ility of liis escape rciuler necessary, even if liis 
life should thereby be taken, in cases where he has committed a 
felony, or has entered a dwelling house with evil intent, or has 
broken or is breaking into an out-house with a view to i)lunder, 
or has in his possession stolen property, or, being under circum- 
stances which raise just suspicion of his design to steal or to 
commit some felony, flees when he is hailed. 

No civil pro- Sec. 3. (>^OJS.) No civil officer shall execute any process 

cess to be exe- . \ n ■ , . . , ., 

cuteii on any arresting and confining the person, or requiring bail or surety, 

penion attend-. , J , ,. ," \ i p .1 ^ 

ing musters. (unless lor treason, lelony or breach of the peace,) on any person 
/lo'f' ia","xL', ettgJiged in the military service required l)y the laws of this State, 
xi.fsij, giuiV' g<^^^o to or returning from the same, under the penalty of twenty- 
five dollars, and the service of any such process shall be void. 

This Section does not extend to commissioned officers in the volunteer service 
of the United States.— J/osc.s- v. Millett, 3 Strob. , 210. Applied.— G'r<(/f/ v. Su m- 
mers, 1 McC , 461. 

1. Officers may Sgc. 4. {2620.) 1. Any officer in the Stjite authorized 1)V law 

Issue warranLs , • - <• .i . <• i 1 ,li ' ■ 

for arrest f to issue Avarrauts for the arrest 01 persons charged with crime 
ed^witiT crimed sliall, on Satisfactory information, laid before him under the oath 
rehuion'^hereto of any credible person, that any fugitive in the State has com- 
1882, xvn., 784. mittcd, out of the State, and within any other State, any offense 
w^hich by the law of the State in which the offense was com- 
mitted is punishable either capitally or by imprisonment for one 
year or u^jwards in any State prison, shall have full power and 
authority, and is hereby required, to issue a warrant for said 
fugitive, and commit him to any jail within the State for the 
space of twenty days, unless sooner demanded by the public 
authorities of the State wherein the offense may have been com- 
mitted, agreeable to the Act of Congress in that case made and 
provided ; if no demand be made within the time, the said fugi- 
tive shall be liberated, unless sufficient cause be shown to the 
contrary : Provided, That nothing herein contained shall be 
construed to deprive any person so arrested of the right to release 
on bail as in cases of similar character of offenses against the 
laws of this State. 

2. To keep re- 2. Every officer committing any person under this Section 
mtt copy to Gov- shall keep a record of the whole proceedings before him, and 

immediately transmit a copy thereof to the Governor of this 
State for such action as he may deem fit therein under the law. 

3. Govemorto 3. The CTOvernor of this State shall immediately inform the 
ot'oi forei^ Governor of the State in which the crime is alleged to have been 

^'^* committed of the proceedings had in such case. 



OF SOUTH CAROIJNA. 205 

A. D. 1801. 

4. ]"]vi'iT SlicrilT or j;iiloi\ in wlioee custody iiny jhtsoii ooni- "*- — < ' 

mittoil iiiHlcr this Suction sliall l)t', ui)oii tlic order of the (Jov- juju.rt-'.sum'n'. 
oriior of this Stiito, shjili siirroiider him to the person mimed in Iur''on/.-r ""f 
said order for tiiat purpose. ooveruor. 

Surh warrant may bo issnod before domand has bpon mado upon tho Gov- 
ornor for such fui^itivo. — HUdv v. ,4iui('r.so>i, 1 Hill, :i:.'7. 

Art to order of liovoruor to surrender prisoner on roquisition from another 
State. — Ex Partr Swiuirinycn, i:i S. C, 74. 

Sec. 5. Ill :i'l oiises of requisition for the delivery of fugitives Ajronte to r«>- 
f roTn justice, the iigcnts api)ointed by the Governor to bring such aVui .^pplii^^ 
fugitives into this .State shall receive, in compensation for their ",'„*|,""°'*' ''"^ 
services, the sum of three dollars per day for the time actually ia«7. xix.. 85o. 
employed, and shall be reimbursed their expenses actually and 
necessarily incurred in the performance of their duties. Upon 
l)resentatiou to the Governor of the accounts of such agents, 
itemized and duly verified by their affidavits thereto annexed, 
the Governor, if he approve the same as correct, shall endorse 
his approval thereon, and upon presentation of the said accounts, 
so endorsed, to the Comptroller-General, he shall draw his war- 
rants on the State Treasurer for the amount thereof, payable out 
of the regular contingent fund of the Governor. 

Sec. 6. {'625.) Hereafter, when any prosecutor, resident in Proofed infrs 
the Judicial District where the prosecution is instituted, in crim- chnrge o^r th^ 
inal cases less than capital, shall have been committed to jail by CTw" ^(^° 
reason of his or her inability to give surety on his or her recog- inai'"(^ases'not 
nizance to prosecute, the Clerk of the Court of Common Pleas "'r-''^..- -„on- 

'■ , IBOi, All., ooO, 

and General Ssssions of such District shall have power to dis- ^^• 
charge such prosecutor on his or her own recognizance, upon 
being satisfied of his or her inability to give such surety. 

Sec. 7. (2020.) Whenever any witness in a criminal case less witnosses may 
than capital shall have been committed to jail by reason of the iiU niunut-r. ^ 
like inability to give surety on a recognizance to testify, the ■^''••*-' 
Clerk of the Court shall have the like power to discharge such 
witness on his or her own recognizance. 

Sec. 8. {20.27.) Prosecutors or witnesses failing to appear ppnnity for 
under such recognizance shall bo deemed guilty of a misdemea- ^^^^ to «»p- 
nor. and the Attorney-General and Solicitors are hereby author- i''.,8»! 
ized to order warrants to issue against such offenders without 
atlidavit or bond to prosecute. 

Sec. 9. {202S.) Tho Clerks of the Court shall I)e entitled to rierk's costa. 
one dollar costs for each recognizance taken under the [)rovisions ^''-*^- 
of Sections G and 7 of this Cha})ter. 




THE CRIMINAL STATUTES 



CHAPTER II. 
Jurisdiction of Trial Justices and Their Courts. 



Sec. 

10. 

11. 



I 8xc. 
Jurisdiction generally. ' 25. 

Jurl.sdlctlon where crimes are not sub- 2ti. 
ject to a punbbnient more than one 
hundred dollars or Imprisonment more 37. 
than thirty da.vs. 28. 

Of a&saulls and batteries. 
May arrest affrayers and others threat- 20. 
enlnK breach of the peace. I 80. 

Jurisdiction In certain cases. 31. 

JurLsdiction in larceny. 32. 

Jurisdiction in receiving stolen goods. 
Jurisdiction In obtaining property by 33. 
false pretenses. 

Can arrest persons charged with of- 
fenses. 34. 
All proceedings to be by information. 
All persons entitled to trial by jury. 
In Charleston can try offenses against 35. 
city ordinances. 

Can appoint Special Constables. 36. 

Need not examine persons charged 
with felony. 37. 

Can bind over witnesses. 



May command the peace. 
May compel affniyers and rioters to 
give security. 

Cannot ball in capital felony. 
Duty on Infonnution of Impending 
duel. 

Change of place of trial. 
Constables not t^) swear out warranto. 
Prosecutor not to serve warrant. 
May Issue wanrants ; when and In 
what cases. 

Warrants to be endorsed In the County 
where served. Appointment of Con- 
stables. 

May admit to ball except In capital 
felonies and cases punished by Im- 
prisonment for life. 
Scale by which recognizances shall be 
regulated. 

May arrest witnesses and commit to 
jail, on their refu-sal to recognize. 
Return papers to Clerk ten days l)efore 
Court. 



Generally. Sectioil 10. {822.) Trial Justices shall have aud exercise. 



g\^7^'^^"'^~' within their resi)ective Counties, all the powers, authority and 

juri.sdiction in criminal cases hereinafter set forth. 

Over offenses Scc. 11. {823.) They shall have jurisdiction of all offenses 

forfeiture Is un- which may be subject to the penalties of either fine or forfeiture 

imprisonment not exceeding one hundred dollars, or imprisonment in the jail 

less than thirty , , , t . i • _l i i 

days; or workhouse not exceeding thirty days ; and may impose any 

lb., 82, sentence within those limits, singly or in the alternative. 

Trial Jtistices have jurisdiction of an offense only where the punishment is 
limited to a fine of $100, or to imprisonment for thirty days.— ^Ya<c v. -l/(«</- 
dm, 28S. C, 50. 

When the punishment of petit larceny was not so limited. Trial Justices had 
no jurisdiction of it.— State v. Williams. 13 S. C, .54tj ; State v. Jenkitts. '2C> S. 
C, 121. But since Act 18S7 (19 Stat., SV.^.) so limitim,' the ptmishment, they 
have exclu.'^ive jurisdiction of that offense. — State v. Cooler, '.Vi S. C, 10.5. 

They have no juri.sdiction of the offense of taking or stealing a boat under 
the Act of 109.5, l^catise the i)ena]ty is indefinite.— SVafc v. Weeks, 14 S. C. 
402. 

Extent to Sgc. 12. (824.) They may punlsh by fine not exceeding one 

pu^iiisVbi^ch^ hundred dollars, or imprisonment in the jail or house of correc- 
tion not exceeding thirty days, all as.^aults aud batteries, and 
other breach of the peace, when the offense is not of a high and 
aggravated nature, requiring, in their judgment, greater punish- 
ment. 



of the peace, 
' J/j., 83. 



OF SOUTH CAROLINA. 267 

A. f). JKyj. 
This Section is not uncon-stitiitionnl. — Shtte v, Fillrbroitm, 2 S. C, 404. v— ^,,-^i_^ 

If th<' indictment in tlie Court of (General KessionH does not nhow on it« facfl 
that the lussault and hattcrj' is of u hij^li and af^f^avat*^! nature, it in without 
its jurisdiction and is exclusively within the jurisdiction of the Trial Justice's 
VouTt.— State v. McKetterick, 14 S. C, :i53 ; Slate v. Grant, 34 8. C, 109. 

Sec. 13. ('*>'-'^) They may cause to be arrested all ufTraycrs, May arrest a!i 
rioters, disturbers, and breakers of the peace, and all who ^'o ou™ni*t7in-uu?ii- 
armed offensively, to the terror of the people, and such as utter Jj^are.'"^**"* '^ °' 
menaces or threatening speeches, or otherwise dangerous and /''•- 6'- 
disorderly persons. Persons arrested for any of said offenses 
shall be examined by the Trial Justice before whom they are 
brought, and may be tried before him, and if found guilty may 
lie required to find sureties of tlie peace, and be punished within 
tlie limits prescribed in Section 12, or, wlien the offense is of a 
high and aggravated nature, they may be committed or bound 
over for trial before the Court of General Sessions. 

Sec. 14. Any person upon conviction of any of the following Jurisdiction of 
named misdemeanors shall be subject and liable for each offense certain ca.ses._ 
to a fine not to exceed one hundred dollars, or to imprisonment is<!;jfxxL!"4n.' 
for a term not exceeding thirty days, to wit : Oarrj^ing concealed 
about the person any deadly weapon, such as are enumerated in 
Section 129, disturbing a religious meeting in any way, or other- 
wise violating the provisions of Section 390, where no weapons 
were actually used and no wounds inflicted ; all riots, routs and 
affrays where no weapons were actually used and no wonnds 
inflicted ; malicious mischief and malicious trespass as contem- 
l)lated in Sections 1G5 and 1G6, when the damage to such prop- 
erty does not exceed twenty dollars ; disposing of property 
under lien, larceny of live stock and crops from the field, or 
obtaining property under false pretenses, when the value of such 
property so disposed of, stolen or obtained, respectively, does not 
exceed five dollars. 

Sec. 15. i^-').) They shall have iurisdiction of larcenies, by Jurisdiction in 

larceny. 

stealing of the property of another, of money, goods or chattels, isro. xiv., 4oa, 
or any bank note, bond, promissory note, bill of exchange, or 
other bill, order, or certificate, or any book of accounts for or 
concerning money or goods due, or to become due, or to be deliv- 
ered, or any deed or writing containing a conveyance of land, or 
any other valuable contract in force, or any receijjt, release, (u- 
defeasance, or any writ, process, or public record, if the prop- 
erty stolen does not exceed twenty dollars in value. 

When there was no law limiting punishment of petit larceny to one hundred 
dollars' line or thirty days' imprisonment, this Section was unconstitutiooal, 



{16, 



268 THE CRIMINAL STATUTES 

A. D. IRW. 



^~-— y-"— ^ ami Trial Justices had no jurisdiction of the crime, and the jurisdiction was 
exdusivtly in the Court of General SeesionK.— .SV<#/r v. Willuims, i:{ S. C. r>4<5; 
atiitc V. Jnikins, \H> S. C, 121. But since Act of 1SS7, (lit Stat., 8r.t,) so limit- 
ing the punishment. Trial Ju.sticfS have exclusive jurisdiction of petit lar- 
ceny.- Htdte V. Cooler, 30 S. C, lO.'). 

In receiving Sgc. 16. (<*?~7.) They tihiill liiiYC jurisdiction of the offenses 
^'iTTti ^ — ^^ biiyiuiT, receiving or aiding in the concealment of stolen 
goods and other property, where they would have jurisdiction of 
tlie larceny of the same good.s or property. 
In obtaining Scc. 17. {828.) They shall have jurisdiction of the offenses 
fajs^pre tensc^'^ of obtaining property by any false pretense, or by any privy or 
ih.,ii. false token, or by any game, device, sleight of hand, pretensions 
to fortune-telling, trick or other means, by the use of cards or 
other implements or instruments, where they would have juris- 
diction of a larceny of the same property, and may punish said 
offenses the same as larceny. 
Can arrest per- Sec. 18. {829.) They shall causB to be arrested all persons 
with offenses._ fouiid within their Counties charged with any offense, and per- 
Jb., 38. gQjjg ^^.]j(^ after committing any offense within the County 
escape out of the same ; examine into treasons, felonies, grand 
larcenies, high crimes and misdemeanors ; and commit or bind 
over for trial those who ajipear to be guilty of crimes or offenses 
not within their jurisdiction, and punish those guilty of such 
offenses within their jurisdiction. 
All proceed- Sec. 19. {830.) All proceedings before Trial Justices in 
lorniation. Criminal cases shall be commenced on information, under oath, 
Jb., §9. plainly and substantially setting forth the offense charged, upon 
which, and only which, shall a warrant of arrest issue. 

The information may be amended at any time before trial. 
All proceedings before Trial Justices shall be summary, or 
with only such delay as a fair and just examination of the case 
requires. 

A wjirrant issued ui)on a statement of facts not sworn to is unconstitutional, 
null and void.- State v. n"iHi6i/.s/), !♦ S. C, :iOU. 

This Section was only intended to require the sworn information to so set 
foilh the charge "plainly and sulisliinfiitlly ' as that the ju'cused would under- 
stand the nature of the offeu.se with which he wjis charged and might prepare 
to meet it. It was not designed to require any formality or technicjU accuracy 
in stating the offense. — McConnel v, Kennedy, 2'J b. C, IfSO ; liogers v. Marl- 
boro Co., 32 S. C, 555. 

Aiippraonsen- Sec. 20. {831.) Every person arrested and brought before a 
j'uryl^Lppeais Trial Justice, charged with an offense within his jurisdiction, 
^''"'?* shall be entitled, on demand, to a trial by jury, which shall be 

selected as provided in Section 885, Part I. of these Statutes. 
Demand for jury made after State has closed its case comes too late. — State 

V. J/ay.s, 24S. C, 194. 



OF SOUTH CAliOLlNA. '^G9 

A. D. 1891. 

Sec. 21, ('^'i'-.) Tfiiil Justices residinfj within the limils i>f '"" ^ ' 
the city of Clmrk'stoii arc vested with jurisdiction to try. deter- m churiifMK.n 

1 • ,1 I,- ^1 11 1- " 1..1 •■nil tlV OITCIIIMII 

mine and impose the penalties authorized l»y ordinance of the aiPiin.Hi iity or- 
City Council ot Charleston. ,^,y ^^j^ ^^^ 

Sec. 22. ('V'J'A) Whenever a Trial .lustice sliall have issued a'-'- 
warrant for the arrest of any person eliarged with an olTensc HrM-<"u" "ImiVrH 
ahove the grade of a misdemeanor, sucli Trial Justice shall be Hmrlfcti '"iv^ "h 
authorized to select any citizen or citizens of the County to exe- nwili',"-in"aiior "^ 
cute the same, upon his endorsement ujwn the said warrant that, Y'*' •^'^'••"^• 
ill his judgment, the selection of such ])erson or i)ersons will he 
conducive to the certain and speedy execution of the said war- 
rant ; and the person or persons so selected shall have all the 
powers now or hereafter conferred by law upon any Constable 
within this State ; and any person or persons selected in the 
manner jirctvided for in this Section shall be required forthwith 
to jiroceed to execute the said warrant ; and upon his willfully, 
negligently or carelessly failing to make the urrcot, or permitting 
the party to escape after arrest, he or they shall be punished, 
upon conviction, on indictment, by line and imi)risonment in 
the County jail, in the discretion of the Judge before whom the 
indictment may be tried ; said imprisonment not to ho less than 
six months. 

Sec. 23. (<^^'J-^-) It shall not be necessary for any Trial Jus- xcwi not ex- 
tice, when any prisoner is produced before him for commitment o"n"'r brought 
or bail, on charge of felony, to examine such prisoner and those cimr^HiV 1 1 h 
that bring him ; such Justice may take the examination of any il^j"^ -a Ttio 
witness in behalf of the State, in the presence of the prisoner, 
allowing such prisoner the right of cross-examination, and re- 
duce the testimony so taken to writing, read the same over to 
the witness and require him to subscribe ; and the Trial Justice 
shall return testimony thus taken to the office of the Clerk of 
Court of General Sessions. 

Ti-iul Justii'L's liiivo no uuthority in cases of felony, except to so examine the 
prisoner and commit or bind him over for trial in the Qeueral Sessions. — 
Cherry v. Mi'dints, 7 S. C, 224. 

It is not the duty of the Trial Justice, under this Section, to examine accused 
I)ersons or to take their statemouts in writin^^, unless they are sworn as wit- 
nesses on belialf of the State by their own consent ; and if he doe.s so, it is not 
an official act ; but lie is not prohibited from doing tio.—^txttf v. Jirnnhani, 1.'! 
S. C, :W'.l ; Sfdlr V. Howard, :« S. C, '.U. 

Sec 24 ('*>''5<5.) Upon information made of the materialitv of Can bind over 

.,,.,,,, , , 1 ■ witnesses. 

any witness withm the State, to sup|)ort any accusation inaile. or iii.,\ii,i^ " 
wliere the materiality of such witness shall be within the knowl- 
edge of any Trial Justice, he shall issue his warrant. re<|uiring 

18 



270 THE CRIMINAL STATUTES 

A. D. 18W. 

'- — Y — -^ sucli w itnesis to appear before him or the next Trial Justice, to 
enter into recognizance, with good security, if deemed i)roper, 
which warrant shall authorize the arrest and detention of any 
such witness in any County in the State ; and on being brought 
before sucli Trial Justice, and refusing to enter into recogniz- 
ance, such witness may be committed by the said Trial Justice ; 
and the accused shall, in felonies, and no other case, have the 
like process to compel the attendance of any witness in his be- 
half as is granted or permitted on the part of the State : Pro- 
vided, That no Trial Justice shall receive any fees for issuing 
more than one warrant for witnesses on tlie part of the State, or 
upon the part of the accused, in the same case, unless, on the 
second or other application, oath shall be made that the prose- 
cutor or accused was not aware, at the issuing of the previous 
warrant, of the materiality of such witness. 
May command Sec. 25. {S36.) Any Trial Justice shall be authorized and 
^b^^ga — required to command all persons who, in his view, may be en- 
gaged in riotous or disorderly conduct, to the disturbance of the 
peace, to desist therefrom, and to arrest any such person who 
shall refuse obedience to his command, and to commit to jail 
any such person who shall fail to enter into suflRcient recogni- 
zance either to keep the peace or to answer to an indictment, as 
the Trial Justice may determine. In like manner he shall arrest 
and commit, if necessary, any person who, in his view, shall per- 
petrate any crime or misdemeanor Avhatsoever. In making any 
such arrest, the Trial Justice shall have power to command any 
Constable, bystander, or the posxe comitatus, as the emergency 
may require ; and any person who shall refuse to aid in such 
arrest, when required by the Trial Justice, shall be liable, to 
indictment as for a misdemeanor. Whenever there shall be an 
indictment for any offense committed in his view, the Triiil Jus- 
tice shall be the prosecutor ; and he shall bind in recognizance 
all necessai7 witnesses. 

The authority here griven to a Trial Justice to arrest and commit for said 
offenses committed " in his view " extends to such offenses committed in his 
hearing.— Mo <t^v. Williams, 3G S. C, 41t3. 

All affrayers Sec. 26.* {2619.) All affrayers, rioters, disturbers and break- 

be^'conipeMed to ^^^ of the pcace, and all who go armed offensively, to the terror 

kel-p the"peace' ^^ ^^^^ people, and such as utter menaces or threatening speeches, 

1870, xivT, 403. or otherwise dangerous and disorderly persons, and all persons 

arrested for assault and batteries, shall be examined by the Trial 

Justice before whom they are brought, and may be tried before 

him, and, if found guilty, may be requii'ed to find sureties for 



OF SOUTH CAUULlxNA. 271 

A. D. isn4. 
the peace, and be punisliod, either by fine or forfeiture not ex- ' ^ ' 
C0e(lin<( one hundrcMi (iollars, or iniprisonniont in tiio jail or wori{- 
housc not oxcccdinj,^ tliirty days, or wlion the olTcnsc is of a lii<jh 
and a<,'<,'ravatt'd initure they may bo committed (tr Ijoimd over 
for trial hcl'ore the Court of (iencral Sessions, 

Sec. 27. ('**''i7'.) No Trial Justice shall let to bail any person cannot let u> 
c'liargcd with any offense the punishment of whicli is deatli ; but ("iiitu" fehlny ° 
if it shall clearly appear, ui)on an examination, that tlie cliarge '""'•'• •^^- --• *'^- 
is not founded in prol)ability, the party may be discharged. 

Sec. 28. (-*^''^''^'.) AVhenevcr any Trial Justice shall receive Duty of, on m- 
informatiou in writing, and under oath, that any person or per- /nJj^nlil'^g'uuel 
sons are about to leave this State for the purpose of sending or '>>^". xu., wh;. 
receiving a challenge to fight a duel, or for the purpose of fight- 
ing a duel after such challenge shall have been sent or received, 
it shall be the duty of such Trial Justice forthwith to issue his 
warrant for the arrest of such ])erson or persons, to be carried 
before some Trial Justice, who shall require such persons to enter 
into recogizance in such sum as to such Trial Justice may seem 
meet, conditioned that such person or persons shall keep the 
peace within this State, and shall not leave the State for the 
purpose of sending or receiving a challenge to fight a duel, or 
for the purpose of fighting a duel after such challenge has been 
sent or received. 

Sec. 29. {^40.) Whenever a person charged with crime to be proceedings 
tried or be examined under Section 18 hereof before a Trial Jus- caiJe^^r^uTsit^s 
tice, or whenever either party to a civil action which is to be 'itijv^xix"';^ 
tried before a Trial Justice, shall file with the Trial Justice issu- 
ing the pajiers an affidavit to the effect that he does not believe 
that he can obtain a fair trial or examination before the Trisd 
Justice, the papers shall be turned over to the nearest Trial Jus- 
tice of that County, who shall proceed to try the case or hold 
the examination as if he had issued the papers : Provided, Such 
affidavit shall set forth the grounds of such belief, that two days' 
notice of the application for such transfer shall be given to the 
adverse party, and but one such transfer shall be allowed eacli 
party in any case. This Section shall not a]iply to trials before _ . 

the Judicial 'J^rial Justices of the city of Charleston.'l Au*.J^ (^ «^^//'--iKiLV*^.^ 
McXair v. Tucker, 24 .S. C, 107. 

Sec. 30. No Trial Justice shall permit a Constable to swear consiabio noi 
out a warrant in any criminal case, except where the Constable \\amnu^. " " ' 
has been personally affected by the offense with which the party "*'*''• ^'•^- ^^• 
is charged. 



272 THE CRIMINAL STATUTES 

A. D. 1891. " 

'"'-'^^ ' Sec. 31. Xo Trial Justice shall deputize the person swearing 

Hroseciilor not ^ ^ . , . , 

to serve war- out a warrant in any case to serve the same. 

Ti«(j XIX 5J1. Sec. 32. 1- Trial Justices shall have authority to issue war- 
May issue war- rants to make search or seizure in suspected places, and to arrest 
1885 XIX.. 251. suspected persons and to seize their property. 

2. Such warrant shall issue only in cases of stolen goods, and 
what cases. must be Supported by the oath or affirmation of the party apply- 
ing for the same, which shall set forth fully and particularly all 
the facts upon which such application is based, and siiall specially 
designate the suspected place or places, the object or objects of 
search or seizure, the name or names of the person or persons 
suspected, and who are to be arrested. 
And not other- 3. 'No such warrant shall issue except in cases and with the 
formalities herein prescribed. 

Such warrant issued upon a statement of facts not sworn to is imconBtitu- 
tional, null and void. — State v. Wimbush, 9 S. C, 309. 

Warrants to Scc. 33. Trial Justices are authorized and empowered to 
County where endorse the warrant or warrants issued by Trial Justices of other 
Tsoi iir iosa. Counties when the person or persons charged with a crime in 
said warrant or warrants resides, or is, in the Count}' of said 
Trial Justice. AVhen a warrant or waiTants is presented to a 
Appointment Trial Justicc for endorsement, as herein provided, the said Trial 
o consta e. Justice shall authorize the person presenting the same, or any 
special Constable, to execute the same within his County. 
All persons Sec. 34. {2021.) Trial Justices may admit to bail any person 
bytriaijustices charged with any offense the punishment of which is other than 
charged with death or imprisonment for life ; and if any person under lawful 
abilfwith death arrcst, on a charge regularly made and not bailable, be brought 
ment^foriife. before a Trial Justice, he shall commit the prisoner to jail ; but 
^^^' ^''•' ^' •*'■ if the offense charged be bailable, the Trial Justice shall take 
recognizance, Avith sufficient surety, if the same be offered : in 
default whereof, such party shall be committed to prison, unless 
it shall clearly appear, upon examination, that the charge is not 
founded in probability ; in which case the party may be dis- 
charged. 

Seal not necessary to the recognizance.— /S^a/e v. Foot, 2 Mill, 12:1 

Legal obligation of surety is, that principal shall appear and abide by judg- 
ment of the Court. — Reynolds v. Hartal, 2 Strob., "^T. 

And sureties are liable notwithstanding discharge of prisoner by U. S. 
ZxkAge.- State v. Daris, 12 S. C, 528. 

In felony, it requires the personal appearance of the principal. — State v. 
Rowe, 8 Rich., 17. 

Even failtire to apjiear and plead will estreat recogmizance.— Ski^c v. J/in- 
ton, 19 S. C, 282. 



OF SOUTH CAROLINA. 273 



Objections to recojfiiizance come t<x) latf after estreat.— //nc/oyi v. Kiitlt,'! ~- — ,■ ' 

Hill. 5:17. 

No objection, that tbero is a variance between it and warrant.— .SVrWp v. 
Ruwv, S Rich., 17. 

It must appear on its face to have been issued by competent authority ; 
otherwise it will bo held invalid on objection, ore fenim.— State v. Ahrens, 13 
S. C, 4!t:{. 

Surety not estopped from denying validity of recognizance because another 
made payments thereon. — Sttilc v. Jiriijhf, 14 S. C, 7. 

Court of General Sessions may estreat recognizance by scire facias. — Stale 
v. M'ildir, 13 S. C, :i44 ; State v. Jackson, Vi S. C. 'M4. 

And iiile to show ciiuse why not is not appealable.— .S7o<c v. McNinch, Vi 
S. C.,4r):.'. 

Sec. 35. {'^6,22.) Recofi^nizances entered into before a Trial srau- hy whkh 
Justice sliull be according to the lollowing scale : ."haii be n-jru- 

1. If the offense charged be punishable with fine and imprison- zanrtiof pruse- 
nicnt, or either, the recognizance of the accused shall not be for nesses. 
less than two hundred dollars. In all cases the Trial Justice x/x;;.|i9; '^''^ 
taking the recognizance shall cause the same to be in such large 
amount as the circumstances may seem to require. 

i. The recognizance of any prosecutor or Avitness, in case of 
misdemeanor, shall not be for less than one hundred dollars ; 
and in case of capital felony, for not less than five hundred dol- 
lars ; though in all cases the Trial Justice shall cause the same 
to l)e in such large amount as the circumstances may seem to 
require. 

Sec. 36. {2623.) Upon information made of the materiality Trial Justices 
of any witness within the State to support any accusation made, ut'ssesanditm,- 
or where the materiality of such witness shall be within the if they refuse to 

knowledge of any Trial Justice, he shall issue his warrant re- —^^ ggj 

quiring such witness to appear before him or the next Trial 
Justice, to enter into recognizance, with good security, if deemed 
proper ; which warrant shall autiiorizc the arrest and detention 
of any such witness in any County in the State ; and on being 
brought before such Trial Justice, and refusing to enter into 
recognizance, such witness may be committed by the said Trial 
Justice to the jai! of the County, there to remain until he shall 
be regularly discharged, or shall enter into recognizance as 
required by this Chapter. 

Sec. 37. (202Jf.) All Trial Justices before whom rccogniz- Trial justices 

' , * ■,..->, I f ^\ • 1^ • '«' return iwptrs 

antes of witnesses, defendant, or prosecutor, for their respective to ciert leu 
appearances at any of the Courts of Sessions for this State shall i°urt. 
be taken, or before whom any information or other paper i"*^'- g j'.*?^9,^xl,^ 
turnable to the same shall ])e made, shall lodge the said recog-*"- 
nizances, information, or other papers, in the respective Clerks' 



274 THE CRIMINAL STATUTES 

A. D. 18W. 



offices of the Courts to which they are returnable, at least ten 
days before the meeting of the said Courts respectively. 



CHAPTER III. 

Proceedings in Courts of Sessions. 



Sec. 

88. Grand jurors, how returned, and term 
of senice. 

89. Who to be grand jurors and who ju- 
rors for trials. 

40. Persons Indicted for capital offenses to 

have a copy of the Indictment. 
■11. Persons indicted may have counsel. 



Sec. 

42. Court may assign counsel. 

43. Traverse of an indictment not a con- 
tinuance. 

44. How Juries are empaneled. 

45. Accused in felonies may have procefls 
to compel attendance of witnesses. 



Grand jurors, Sectloil 38. [2629.) The Clerk of the Court of General Ses- 
returaed a n d sions in eacli Countj, not less than fifteen days before the com- 
^^ ''^T^'^a.r mencemeut of the firet term of the Court in each vear, shall is.?ue 

lOTl, ilV., 01)4, _ _ - 

833. writs of venire facias, in each County, for eighteen grand jurors, 

to be returned to that Court, who shall be held to serve at each 
term thereof throughout the ye^ir, and until another grand jury is 
empaneled in their stead. 

The writ of venire must have the seal of the Court or it is invalid. — State v. 
Dozier, 2 Speer, 21(j : Stat^v. Williams, 1 Rich.. 181). But it is not necessary 
that the impression of the device should be manifest on the seal. — State v. Mc- 
Elmiirray, o Strob., 8:) ; State v. Thayer, 4 Strob., 287. It is not necessary 
that the names of the jurors should be embodied in the writ ; it is sufficient if 
they be arranged in lists below the signature of the Clerk. —State v. McElmur- 
ray, 3 Strob., 39. 

Grand jury need not consist of more than twelve mevaheTs.— State v. Clay- 
ton, 11 Rich., 5S1. If grand jurj' drawn to serve during the year are dis- 
charged before they are empaneled, the grand jury of the preceding year 
may act.-Stafe v. MeEvoy, 9 S. C, 208. 

Indictment quashed because a paid attorney, representing Solicitor in his 
absence, advised the grand jttry as to their duty.— iState v. Addison, 2 S. C, 
366. 

But no ground to do so, where Solicitor, at foreman's request, wont into 
their room and ad\'ised as to how the jurj- should write their tindiugs, already 
agreed on. — State v. McNinch, 12 S. C, 89. 

Witnesses examined before grand jurj' must be sworn in open Conxt.— State 
V. Kilerease, 6 S. C, 444. Court will not inquire into testimony that influ- 
enced the ^vxy.— State v. lioyd, 2 Hill. 2SS. 

Finding of grand jury in writing, if publicly announced by the Clerk in their 
presence, is good, though not signed by the foreman.— iS'fato v. Creiyhton, I 
N". & McC., 256. 
Who to be 

grand jumrs CgQ 39 (^(tjo.) CJ raiid lurors sliall l)e drawn, suminoned 

and who jurors •>"^^' '"«'. v / .1 

for tri als. and returned in the .<anie manner as jurors for trials, and when 

834.' ■' ' drawn at the same time as jurors for trials the persons whose 



OF SOUTH CAROLINA. 275 

A. D. 1^W. 

niiines are first drawn, to the munher rcriiiirod, shall he returned "^ — ' ' 

as <,'raii(l jurors, and those afterwards drawn, to the' uuinhcr 

required, shall he jurors for trials. 

The accused Ls not entitled to demand of Jury CommiHsioners a copy of the 
jury list. — .SVr;/(' v. Mrrrimnu, ;{4 S. C, 1<5. 

Sec. 40. (-'>'•>'-.) Whoever shall he accused and indicted for Pf-rsons in- 

.,,,,. , . 1 11 1 , , , <ll''t<'<l for capl- 

auy capital oliciise wliatsoever sliall liavc a true c(»pv of the tjii <.(i«'n»cs t r. 
Avhole iiulictiuent, hut not the names of the witnesses, delivered their ind ictme pt 
to him, three days, at least, before he shall be tried for the same, i^,^^' iUmSsc, 
whereby to enable him to advise with counsel thereupon, his 
attorney or attorneys, agent or agents, or any of them, requiring 
the same, and paying the officer his usual fees for the copy of 
every such indictment. 

The three days are inclusive of day on which motion is made for copy. — 
Stafc V. Brii/ffs, 1 Brev., 8. 

The demand for the copy should be made at the latest at the arraignment. — 
State V. Willhujhani, 10 Rich., :i57. 

When made after trial had commenced and more than three days after 
amiigumeut, it was properly refused.— .SYa^- v. Bri(j(js, 27 S. C, 80. 

To move for a continuance at aiTaignment, on the groimd that the prisoner 
was entitled to a copy of the indictment three days before trial, was consid- 
ered a demand for the copy.— State v. Willinc/ham, 10 Rich., 2,57. 

Arraignment without demand for the copy amounts to a waiver. — lb. 

On Monday the pris>oner was arraigned and his counsel demanded a copy of 
indictment, which was furnished same day. The counsel then said they 
thought they would be ready for ti-ial on ^Yednesday, but on that day they 
were not ready, and declined to move for delay. Held that they had waived 
right to have copy of indictment three days before tiial.— State v. Colclouyh, 

ai s. c, i5(;. 

Sec. 41. (2033.) Every such person so accused, and indicted. May have 

arraiirnod or tried, for anv capital offense, shall be received and "!""''!!' 

- ^ ,. X i /i.; ton.. Art. 

admitted to make his full defense by counsel learned in the law, i-. 9i3. 
and to make any proof that he can by lawful witness or wit- 
nesses, who shall then be upon oath, for his just defense in that 
behalf. 

Sec. 42. {-''^Jf.) In case any person so accused or indicted rmin may as- 
shall desire counsel, the Court before whom such person shall be " 1731, m., -^ 
tried is authorized and required, immediately upon his request, 
to assign to such person such and so many counsel, not exceed- 
ing two, as the person shall desire, to whom such counsel shall 
have free access, at all seasonable times, either before, at. or after 
the said trial, any law or usage to the contrary notwithstanding. 

Sec. 43. {-035.) A traverse of an indictment shall not, in Trnvors.- of nn 

* ^ . . ...... . , liulUtni.-nt not 

any Court of criminal jurisdiction in this State, of itself, o])e- a cn.ntinuunce. 
rate to continue the case. ^^^^' ^^^'•' ^^ 



THE CRIMINAL STATUTES 



Sec. 44. {-^li-^fi.) In einpiineling juries in criminal cases, 
e 11 "00*11 ("e<L the jurors shall be called, sworn and empaneled anew for the 
**//j° uit'-'^m ^'"'''' *^^ ^''^^^^ ^"■^^^ according to the established practice, and their 

foreman shall be appointed by the Court or by the jury when 

they retire to consider their verdict. 

As to practice of empaneling juries.— S^a^e v. Sturh, 1 Bail., IJiJO ; State v. 
Sims, 2 Bail., 29 ; State v. Crank, 2 Bail., 66 ; State v. Kleinback, 2 Speer, 421; 
Statf V. Hrown, 3 Strob., 514. 

In felonies Sec. 45. (2638.) The accused shall, in felonies, and in other 
iiavc°piw^"to cases, have the like process to compel the attendance of any wit- 
ance'^orwH- ness in their behalf as is granted or permitted on the part of the 

nesses. Sfnfp 

? u ; I8:j9, XI., In cases of misdemeanor defendant cannot have his witn^aes Itound over. — 
3:3, §8. g^^^^ ^ Thomas, 8 Rich., 2'Jo. 

In ca-se of a capital offense, the prisoner having been committed a short time 

before the Court, he was allowed continuance to procure his witnesses.— S<ate 

Lewis, 1 Bay, 1. 



CHAPTER IV. 

Of the Rights of Persons Accused. 



Sec 
40. Persons arrested to be Informed of 
ground of arrest, &c.; penalty for false 
answering, &c. 

47. Offenses to be prosecuted by indict- 
ment, except. Ac. 

48. Persons arrested may bave counsel, Ac. 



Sec. 

49. Person Indicted, how convicted. 

50. When no defense. 

51. No person to be punished until legally 
convicted. 



Persons ar- Sectioil 46. (^H~-) EveiT person arrested by virtue of pro- 
formed of cess, or taken into custody by an officer in this State, has a right 
festlicfpena^ to know, from the officer who arrests or claims to detain him, 
swere, &c.^^ ^° the true ground on which the arrest is made ; and an officer 
who refuses to answer a question relative to the reason for such 
arrest, or answers such question untruly, or assigns to the person 
arrested an untrue reason for the arrest, or neglects, on request, 
to exhibit to the person arrested, or any other person acting in 
his behalf, the precept by virtue of which such arrest is made, 
shall be punished as for a misdemeanor. 
Offenses to be SgC. 47. {'^44^-) No person shall be held to answer in any 
indtctmen^t, ex^ Court for an alleged crime or offense unless upon indictment by 
^^^conTlrtTir ^ grand jury except in the following cases : 
Procedure^ ^7' ^" ^^ '^^n a prosecution by information is expressly authorized 
by statute ; 

2. In proceedings before a Police Court or Trial Justice ; and, 

3. In proceedings before courts martial. 



OF soT-i'ir r' A no UNA. 277 

' A. D. IMM. 

Sec. 48. {-'I'l'-'-) 'I'iic accused shiill. at liis trial. Itc allowed to *"" ■•" ' 
!)(' licanl by eoiiMsi'l. may (Icft-nd liiinsclf. and sliall have a rijjlit in«y imvfMoun- 
to produce witnesses and ))roofs in his favor, and to meet the ,!„^ '^^ , j,3 
witnesses ])roduced ii<?ainst him face to face. 

Sec. 49. {'V>0.) \o person indi(;te(l for an ofTense shall he ivrxims in- 
convicted tnereoi. unless hy ooniession ot his gnilt in open { ourt, convicted, 
or by admitting the truth of the charge against him by his plea 
or demurrer, or by the verdict of a jury accepted and recorded 
by the C'ourt. 

Sec. 50. { --'/■'> 1-) II' :i person, on his trial, be acquitted upon when node- 

fcnsc. 

the ij^round of a variance between the indictment and the proof, 
or upon an exception to the form or substance of the indictment, 
he nuiy be arraigned again on a new indictment, and tried and 
convicted for the same offense, notwithstanding such former 
acquittal. 

Sec. 51. {'-4o2.) Xo person shall be punished for an offense No person to 
unless duly and legally convicted thereof in a Court having com- tii leRaiiy con- 
petent jurisdiction of the cause and of the person. 



CHAPTER V. 
Of Trials. 

EC. I Sec. 

55. No grand Juror to be on trial jiirj-. | 00. Averment of Instrument of writing. 

5:5. Payment of taxes not a cause for chal- CI. Indictment for purjiu-y. 



longe. 
TA. Uiglits of challenge. 
.')."). What Indictment shall be sufficient. 
5(j. How (Icfecl.s may be objecte<l to. 
.'>7. Aininidments of Indictments. 
58. Plea of autre foix acf/uit or convict. 
5!). Indictments for muider. 



02. Prisoners' witnesses to be sworn. 

03. Defendant may testify. 

04. Persons not required to criminate 
themselves ; privilege of husband and 
wife. 

65. Judge may sentence persons turn com- 
pos mentui to Asylum. 



Section 52. (-639.) No member of the grand jury which Nogmndjumr 
has found an indictment shall be put ujion the jury for the trial juVy.*^" "" 
thereof. " ^ ^7^^ , m., -^^ 

But if not chiilUnged before ho is sworn on trial, too late to move for mw 
trial on that ^ound.— State v. O'Driscoll, 2 Bay, l.">:5. 

Sec. 53. {"'f^O.) In indictments and penal actions for the payment of 
recovery of a sum of money, or other thing forfeited, it shall cnuse'^ of "hai- 
not l)e a cause of challenge to a juror that he is liable to pay 'j'hTr xrv^ooai 
taxes in any County, city or town which may be benefited by'^'- 
such recovery. 



I 



278 THE CRIMINAL STATUTES 

A. D. 18M. ~ 

' ^ ' Sec. 54. Any i)erson or persons who shall be arrai^ied for 

itnge. ^^ ' the crime of murder, manslauffhter, burglary, arson, rape, grand 
n ^^sVit'-'inli' larceny or forgery shall be entitled to peremptory challenges not 
xi'x 'wo'- ikI' exceeding ten ; and the State in such cases shall be entitled to 
XXI., w. peremptory challenges not exceeding five ; and any person or 

persons who shall be indicted for any crime or offense other than 
those enumerated above shall have the right to peremptory chal- 
lenges not exceeding five, and the State in such cases shall be 
entitled to peremptory challenges not exceeding two. But no 
right to stand aside jurors shall be allowed to the State in any 
case whatsoever : Provided, That in no case where there shall be 
more than one defendant jointly tried shall more than twenty 
peremptory challenges be allowed in all to the defendants. 

The right to arraignment in larceny is determined by the value of the prop- 
erty stated in the indictment, whether below the valne of twenty dollars. — 
State V. Moore, 30 S. C, 69. 

The Acts reducing the number of challenges to what is here allowed are not 
unconstitutional, as they do not prevent the right of trial by jury. — State v. 
Wyse, :i-2 S. C, 45. 

The right to challenge is a sacred right.— .S'^«^<' v. Briggs, 27 S. C, 80. But 
the right to challenge is not a right to select a jury, but a right to reject certain 
number of ^\yrovs.— State v. Wise, 7 Rich., 412 ; State v. Coleman. 8 S. C, 237 ; 
State V. Gill. 14 S. C, 411 ; State v. Prater, 2« S. C, l!t8. Effect of exhausting 
jury by challenge. — State v. Jiurket, 2 M. Con. Rep., l.>5. Prisoner cannot 
withdraw a peremptory challenge in order to challenge for cause. — State v. 
PHce, 10 Rich., :i51. 

Overruling challenges for cause not to be considered as error when jurj- was 
completed without exhausting jieremptorj- challenges — State v. McQvaige. n 
a. C, 420 ; State v. Dodson, 16 S. C, 4.53. Defendant on trial for burning btacks 
of hay and ricks of com fodder only entitled to five i)eremptory challenges.— 
State V. Pope, 9 S. C, 273. 

Defendant on trial for burning a frame buDding is only entitled to five per- 
emptorj- challenges.— 6Yofe v. TT'o?-A-»ja>i, 1.5 S. C, .544. 

Defendants on trial for receiAing stolen goods above S20 are each entitled to 
only five challenges. — State v, Jacob, W S. C. 131. 

Formerly, before the amendatory Act of December 2:], 1.S82, no peremptorj* 
challenge, in trials for offenses not described in this Section, could be made to 
jurors drawn from supernumeraries to fill places of those challenged. — State v. 
Cardozo, 11 S. C, 197 ; State v. Smalls, 11 S. C, 2«>2. 

Where the panel is exhausted by challenges of four prisoners, it was irreg^u- 
lar to postpone trial to another week Ijefore another original jiuy ; and it was 
error to allow the prisoner then only twelve challenges becaase he had 
exhausted eight the week hetore.— State v. Briggs. 27 S. C, 80. 

^Vhere jurors father and grandfather of accused were brothers, the Judge 
properly excluded the juror on account of consanguinity.— .S7a?r v. Merrimnn, 
04 S. C* 16. 

What Indict- Ssc. 55. Every indictment shall be deemed and adjudged 
s^ffldenu ^ sufficient and good in law which, in addition to allegations as to 
1SS7. XIX., 829. time and place as now required by law, charges the crime sub- 
stantially in the language of the common law or of the statute 



OF SOUTH CAHHMXA. 270 

A. D. IWU. 

pi'()liil)iliii,Lr the siunc, or so |il:iiiily tli;it tin- iiiitiirc of tbo offcnBC ^"-"^'''^^ 
(■liari,^('(] may be easily luidcrstood ; and if the olTeiise be a statu- 
tory olTense, tliat the same l)e alleged to be contrary to the statute 
in such case made and provided. 

It must not nllt's*' tlie dnte of the rmnmiKsion of the crime posterior to the 
fimliiiK of the iiiclittmcnt.— .*<^«^' v. liny. Rice, :!. It must set forth the ncces- 
siiry info^Hlionts of the offenso charfjcd.— .SVo/*' v. Hmdrison, 1 Rich., \X4. 
Ht)W third persons should bo described. —»i7<r/f v. Anderson, -i Rich., 174 ; 
State V. Scurri/, :i Rich., 70. Defendimt's name once set out in full need not 
be constantly repeated.— iS^o/r v. Andersni}, 8 Rich., 17(1. 

It is correct to charpre in the indictment that the offense was committed at 
the Court House.— State v. CoU-Unujh, 'M S. C, lo(5. 

Even when the name of the owner of the stolen poods as laid in the indict- 
ment for larc<'uy is idnn sonans with the name proved, and the defendant 
was not misled, the variance is not fatal. — State v. White, 'M S. C, 5'.». 

If the offense be statutory, it must be alleged to be contrary to statute in 
such case made and pro^■ided. — State v. Sti-ickland, 10 S. C, 11)2. 

Sec. 56. Every objection to any indictment for any defect How defects 

apiiai-ent on the face thereof shall be taken by demurrer, or on to. 

motion to quash such indictment, before the jury shall be sworn, ^''• 

and not afterwards. 

State V. Ci-ank. 2 Bail., 66 ; State v. Cook, Riley's Coll. of Cases, 18.37, p. 23.5. 
Tlic Supremo Court will not consider error imputed to trial Judge for refu.sing 
to (|uasli indictment, when the "Case "does not show that motion therefor 
was made.— .S7o/c v. Atkinson, o3 S. C, 100. 

Sec. 57. If there be any defect in form in any indictment Amendments 
it shall be competent for the Court before which the case is tried "ser, xix!°!«o. 
to amend the said indictment : Provided, Such amendment does 
not change the nature of the offense charged ; that if on the 
trial of any case there shall appear to be any variance between 
the allegations of the indictment and the evidence offered in 
l)roof thereof, it shall be competent for the Court before which 
the trial shall be had to amend the said indictment according to 
the proof : Provided, Such amendment does not change the 
nature of the offense charged; and after such amendment the 
trial shall proceed in all respects and with the same consequences 
as if no variance had occurred, nnlcss such amendment shall 
operate as a sui-jn-i.^^e to the defendant, in which case the defend- 
ant shall be entitled, upon demand, to a continuance of the 
cause. 

Court may amend caption of indictment at any thno.— State v. Milliams, 2 
McC, ;{01 ; Vandyke v. Dare, 1 Bail., «>"). 

Sec 58 In any plea of au/re foia (tn/ui/ or ok/ re fnis con- ^ nenof auty,- 
vict, it shall be sutheient for any defendant to state that he has (-"nnvf. 
been lawfully acquitted or convicted, as the case may be, of the 
offense charged in the indictment. 



280 THE CRIMINAL STATUTES 

A. D. ISM. 

^— — ->^— ^ Tlie right to such defense rests solely uixju the ConK., Art. 1, Sec. IS, and it 
camiot avail excejjt where the defendant ha.s been acquitted or convicted by a 
jWTy.—Sfafr V. Shin;; '20 S. ('., :5!t:i ; Slat)- v. Wl/sr, :« K. C, r,H->. 

An ac<iuittal upon an iu.sufficient indictment is no bar to a second indict- 
ment for sjime offense. — Stair v. Jiny, Rice, ;i. 

The ac(iuittal or conviction miLst be upon charKC of same offense to sustain 
such lAeu.— State v. Thurston, 2 McM., :}!>() ; State v. Casey, 1 Rich., 'J2 ; State 
V. h'isher, 1 Rich., 21'J ; State v. Nathan, 5 Rich., Sil. 

Indictments SeC. 59. EveiT indictment for murder slmll Ijo deemed and 
for niunlcr. 



jfj adjudged sufficient and good in law which, in addition to setting 

forth the time and phice, together with a i)lain statement, 
divested of all useless phraseology, of the manner in which the 
death of the deceased was caused, charges that the defendant 
did feloniously, willfully, and of his malice aforethought, kill 
and murder the deceased. 

Concluding "against the -peace and dignity of the same State aforesaid" 
instead of "against the peace and dignity of the State" is good.— is7a<e v. 
Bohinson, 27 S. C, 615. 

The place of death is an essential allegation which this Section has not dis- 
pensed with, and which, under the terms of the Constitution, the Legislature 
cannot dispense v/ith.— State v. Blakeney, 'do S. C, 111. 

If the indictment fail to allege the place of death, the omission cannot be 
supplied by amendment. — Ih. 

Avermeat of Sec. 60. in all cases whatsoever in which it shall be neces- 
vvriung.^"* °' sary to make any averment in any indictment as to any instru- 
it>- ment, whether the same consists wholly or in part of writing, 
print or figures, it shall be sufficient to describe such instrument 
by any name or designations by which the same may be usually 
known, or by the purport thereof, and in such manner as to 
sufficiently identify such instrument, without setting out any 
copy or fac simile of the whole or any part thereof. 
Indictments Sbc. 61. In any indictment for perjury it shall not be neces- 
^^LP?^"'?- — sary to set forth more than the substance of the oath and the 
fact concerning which the perjury is alleged to have been com- 
mitted. 
Prisoner's wit- Sec. 62. {26^2.) Every person who shall be j^roduced or 
8\TOra, 4c? ^^ appear as a witness on the behalf of the prisoner, upon any trial 
1 Ann, St. 2, c] for treason or felony, before he be admitted to depose or give 

n ; 1712, II., 543, *" 1 & 

83. any manner of evidence, shall first take an oath to depose the 

truth, the Avhole truth, and nothing but the truth, in such man- 
ner as the Avitnesses for the State are by law obliged to do ; and 
if convicted of any willful perjury in such evidence shall suffer 
all the ]ninishnients, penalties, forfeitures and disjibilities which 
by law may be inllictcd upon persons convicted of willful jierjury. 



OF SOUTH CAR(JLli\A. 281 

~ A. n. iHtM. 
Sec. 63. {26J^3.) Ill tlir trial of all cririiiiial cas.-s. tlic dc- -^' ' 

1 1 ' 11 1 11 1 » ,!• /■<• 1 1 • . 1 1 I><'f<'n<lnnt may 

loiKlant, shall be allowed to tt'stiiy (it lie desires to do so, and n-Hiify m <rirni- 
not otherwise.) as to the faets and eireunistaiiees of the ease, uiwi. .xiii.. .its, 

Dofcndant taking the stand mny be cros-s-exiiminod ah any other witntta.— *" 
Slalv V. liiibcrtson, 2(1 S. C, 117 ; Hfntr v. IV'j/s<', :V,i S. ()., M2 ; Stiilr v. AJrrH- 
man, S4 S. C, iti. Muy be i'xaniin«'d us to liis rolij^nous belief. — Slutr v. Turner, 
.'^<i S. C, 5;^. His veracity may be assailed.— .S7(f^r v. fiohrrtsnu, 2(i S. C, 117. 
Wlien twt) defi'ndants are jointly tried for lare*>ny, the testimony of one 
already eonvieted of an infamous crimt" should ro to the jury under instruc- 
tions tJuit it is incompetent as to the other —Stutc v. Prirrsitn, .'Jo S. (.'., \iV.). 

It is improper for Solicitor in argument to comment upon defendant's failure 
to testify ; Init it is not reversible error if trial Judge corrected the effect 
intended.— .S7a/c v. Howard, 35 S. C, 197. 

Sec. 64. {^044-) No person shall be required to answer any Pcreons not re- 
question tending to criminate himself, nor shall husband or wife nVte Um-'hi- 
be required to disclose any communication made to each other priv-neges of 
during their coverture; nor shall testimony given under the ,s"?p.""** *° 
jtreeeding Section be afterwards used against him in any other /''.. s'^- 
criminal case, except ujion an indictment for perjury founded 
on that testimony. 

CONSTRITED— 

As " simply intended to preserve the then existing rales of law by which 
persons could not be required to criminate themselves, and by which confiden- 
tial communications " between husband and wife were protected ; it does not 
change the rule that a wife is an incompetent witness for or against her hus- 
band. -■.'>y«^' V. Workuian, 1.5 S. C, 540 ; Stafcv. DorJson, KJS. C, 453. Accom- 
l)lice, by becoming \vitne.ss, does not waive protection accorded to his commu- 
nications to his attorney. — State v. James, 34 S. C, 4t>. 

Sec. 65. {364o.) Any Judge of the Circuit Court is author- judge may 
ized to send to the Lunatic Asylum every person charged with ^,!i,rro^'^f?« 
the commission of any criminal offense who shall, upon the trial "ui," "* **' 
before him, prove to be non comjjos mentis; and the said Judge i^^'-'"-'. vi.. ase, sr 
is autliorized to make all necessary orders to carry into effect this 
power. 



I 



CHAPTER VI. 

Of Appeals and New Trials. 

Sec. 1 SEC. 

Oii. Appeals from Trial Justices' Courts. 72. Circuit Courts mny prant now trials. 

07. Time of upi)eal. 73. Stay uf exiH-utluii. 

f-K. Notice t(i 111' lllfd with Clt-rk of Court. 71. I'l-actlce and procoeUlnjis. 

li'J. Defendant entilhtl to ball. 75. No ball after conviction for lilglior 

70. Clerk lo enter ca-se on pinper diK-ket. crimes. 

71. .\p))eal heard without examination of 
wltne.sse.s. ' 

Section 66 {'C46.) Every person convicted before a Trial .-MM>oni.\from 

»j ■^ ^j V ^\t ^t. wx*. ^ w I J ir ^ Trial Justices 

Ju.sticc of any oH'ouse whatever and sentenced may appeal fr()m <'ourt.>i. 
the seutuneo to the next term of the Court of Ceuoral iSe&sious si-i. " ' 



282 THE CRIMINAL STATUTES 

A, D. 1804. ' 

^""'"v — -^ for the County. All appeals from Tiiul Justices' Courts in 
criminal causes shall be taken and prosecuted as hereinafter pre- 
seril)ed. 
Time of ap- Sec. 67. {-^0^.7.) The appellant shall within five days after 
1880. XVII., 493. ^^"^^'^^*^ serve a notice of appeal upon the Trial Justice who 
tries the case, stating the grounds upon which the appeal is 
founded. 
NoUce to be Scc. 68. {^OJf.S.) Within ten days after said service the said 
^icoln^ ^"""■'' Trial Justice sliall file in the office of the Clerk of Court the said 
1880. XVII., 493". notice, together with the record and statement of all the pro- 
ceedings in the case, and the testimony in writing taken at the 
trial and signed by the witnesses. 
Defendant en- Scc. 69. {26Jf9.) Upon servicc of the Said notice the said 
\}^LJ*^^^^h — Trial Justice shall on demand of the defendant admit him to 
bail in such reasonable sum, and with good sureties, as said Trial 
Justice may require, Avith conditions to appear at the Court 
appealed to, and at any subsequent term to which the case may 
be continued, if not previously surrendered, and so from term to 
terra until the final decree, sentence or order of the Court 
thereon, and to abide such final sentence, order or decree, and 
not depart without leave, and in the meantime to keep the peace 
and be of good behavior. 
Clerk to enter Scc. 70. {'^650.) The Clerk of Court upon receipt of said 
docket" ^'^^^^ case shall place the same upon the proper docket of the Court 
-^'^- of General .Sessions for trial or other disposition at the next 
ensuing term of said Court. 
Appeal heard Sgc. 71. {2651.) The Said appeal shall be heard by the C'ourt 
nation '^ oT wit- of General Sessions upon the grounds of exception made, and 
nesses. upon the papers hereinbefore required, and Avithout the examina- 
tion of witnesses in said Court. And the said Court may either 
confirm the sentence appealed from, reverse or modify the same, 
or grant a new trial, as to the said Court may seem meet and 
conformable to law. 

But pending such appeal the Court of General Sessions has no authority to 
order a new trial on the ground of newly-discovered evidence. — Sams v. 
Hoover, Si S. C, 401. 

Circuit Courts Scc. 72. {2052.) All the Circuit Courts of this State shall 

trfa\sf™° °^ have power to grant new trials in cases where there has been a 

trial by jury, for reasons for which new trials have usually been 

granted in the Courts of law of tlie United States. 

To be liberally construed as to granting new trials.— i^^norc v, Scui-ry, 1 S. 
C, 139. No time prescribed to move therefor.— Sajii.s v. Hoover, ^Vi S. C, 401. 
Error in amount of verdict should be corrected by new trial.— iri/sow v. li. JR., 



OF SOUTH CAliOLIxNA. 283 

■ ~ A. D. IS-JI. 



li'i S. C, ")!I"J ; Li'vi v. Lryrj, 2:\ S. O., 'JS'i. New trial i« the ri-iiicdy wlitTo '~ . -' 

tlici'o ifl variimc^ hotwcen thi' tt'stiniony and matcrinl allcj^atiou of tin* indict- 
miMit.— .SV/»^• V. /liiiiiilfi))), ITS. C, 4iU. NiiW trial Blumld ho fn'"nt<'d wlien 
till' jury dinrojjard tlic Judj^^e's cliartfo. — Dt-nt v. Jiryn-, U'> S. C, 14 ; Thitiiip>ti>n 
V. Lee, 111 S. C, 4S1I. .Judj^e's conclusion as to new trial, when founded on the 
facts at trial, is final. — /ij-iV/i/iifm v. li. If., 8 S. C, 1T:{ ; Strclc v. II. It., II S- 
C, 5S'.I ; U urrrTi v. Lagrtme, 12 S. C, 4.') ; St,;-h' v. /^ /i'., 14 S. C, :W4 ; Wood 
V. y^. ii'., li» S. C, 5-» ; Lanii-r v. Totlcsoit, 20 S. C, 57 ; lilakely v. Frazin; 20 
S. C, 144 ; Fi)i<-/t V. /-Vmc/j, 21 S. C, :{42 ; //i/»;ic v. Erwin, 'J-'J H. C, 22G ; State 
V. Tan-ant, 24 S. C, T/.W. But not when founded on error of law.— State v. 
David, 14 ft. C.,42'<; U'oot/ v. A', li., V.) S. C, r.Tlt. Judge has discretionary 
power to f^ant new trial on after-discovered testimony. — State v. David, 14 H. 
r., 428 ; Tarrant v. Gitlelsony 14 S. C, 020 ; 67a<<; v. VrorAman, 15 S. C, 540 ; 
Durant v. Fhiljiat, 10 S. C, 110 ; Wariny v. //. 7.'., Ki S. C.,41(i; Samx v 
Hoover, ;5:{ S. C, 401. Circuit Court has no power to grant new trials, except 
in cases tried by a ^\XTy.—Meetzv v. 7?. I\., 2;^ S. C, 1. Judge cannot grant at 
chambers.— 5^«^' v. Chavis, 34 S. C, 132. As to punishment for contempt. — 
Uibsoa V. Gibson, 7 S. C, 350. 

Sec. 73. Ill criiiiiiKtl cases service of notice of appeal in stay execuuon. 
accordance with law shall operate as a stay of the execution of 
the sentence until the appeal is finally clisi)osecl of. Pending 
such a])peal the defendant shall still remain in confinement, i^^baned""""^ 
uule.ss he give bail in such sum and with such sureties as to the i«>j, xviu., r.j7 
Court shall seem proper. 

Sec. 74. 't'he ])ractice and proceedings in cases of appeal Practice and 
from the Courts of General Sessions shall conform to the prac- j;,., 73°^'^ 
lice and proceedings in cases of apjoeal from the Courts of Com- 
mon Pleas. 

Sec. 75. It shall not be lawful for any Justice of the xo bail after 
Supreme Court, or any Circuit Judge of this State, pending an ^jfiier crimes.^' 
appeal to the Supreme Court, to grant bail to any person who i*^ xix., 7sa. 
shall have been convicted of any offense the punishment whereof 
is death, or imprisonment for life, or imprisonment for any term 
exceeding ten years. 




THE CRIMINAL STATUTES 



CHAPTER VII. 
Of Judgment and Execution. 

SEC. I 8bc. 
70. Punlshmont for felony where not spe- 82. Sale of (jKoiis, ice, by prisoner voirt. 

<lully provldwl. 88. Prisoner ac<uiltt<-U fretil from ciisw. 

7". I'unlshuunit In caflcs where Imprison- 84. Rw-otfnlzunLt's to be In the uutue of 

nicut Ls provldoil. : the .stJiK-. 

78. Sentunco where no punishment Is pro- 85. I'nK-eeillngs In coses of forfeiture of 
vlded. I recoffnlzanee. 

79. Prisoners to pay their own costs, If i 80. Execution to Issue for sale of estate of 
able, 4c. offender, ic. 

80. Courts may order Sheriffs to sell goods ' 87. If amount not made, offender may be 
of prisoner to pay costs. | committed to Jail, 4c. 

81. Appraisement of such Roods ; how 88. Court may remit forfeiture In certain 
made. cases. 

Punishment Sectloil 76. {^'">H-) Whcro 110 Special punishment is provided 
n'ot speciafiy for ii folonv, it shall, at the discretion of the Court, he hy one or 
iHi^s x^iii^'^W iiiore of the following modes, to wit : confinement in the Peni- 
175' §4"'^' ^^^' tentiary, or in a workhouse or penal farm, (when such institu- 
tions shall exist,) for a period not less than three months nor 
more tlian ten years, with such imposition of hard labor and soli- 
tary confinement as may be directed. 
Punishment Sec. 77. {^615.) In every case in which imprisonment is pro- 
imprtsounjenus vidcd as the punishment, in whole or in part, for any crime, such 
provkied. imprisonment shall be either in the Penitentiary with or without 

18(8, X\ I., 4o3. -^ ^ _ _ -^ 

hard labor, or in the County jail with or without hard labor, at 
the discretion of the Circuit Judge pronouncing the sentence. 

Violations of law in selling liquor without license being then punishable by 
fine or imprisonment, such imprisonment was properlj- made in the Peniten- 
tiary with hard labor.— 6Vfj^' v. Boijcl, ;!5 S. C, 2<!'.t. 

Person convicted of assault and batten- with intent to kill maybe sentenced 
to imprisonment at hard labor in Penitentiary.— S^a/c v. TlV/sc/i, 29 S. C, 4. 

Sentence Sec. 78. (2653.) In cases of legal conviction, where no jDun- 

ishm'cnt^te'pro^ ishment is provided by statute, the Court shall award such 

^ o'^i ...... -vvrr sentence as is conformable to the common usage and practice in 

(See l8tiL, xni, *^ * 

400, g§9, 10.) tijig state, according to the nature of the ofi"ense and not repug- 
nant to the Constitution. 
Prisoners to Sec. 79. {-^Oo^.) Every person who shall be committed to 
?f'^abie!^4c.'*^^'^ ^"3' eommou jail in this State by any Trial Justice, for any 
174], in., 038, gi offense or misdemeanor, having means or ability to do the same, 
shall bear his own reasonable charges for conveying or sending 
him to the said jail, and the cliarges also of such as shall be 
ai)p()inted to and shall guard him to the said jail. 

Sec. 80. ('-6V7.J.) Tlie Court of General Sessions before whom 
any criminal shall be tried shall, upon conviction of the offender. 



OF «OUTH CAKULliNA. :.'«5 



A. D. IWM. 

I)y ni'dci-. ;iiilli(ii-izc jiiid diiccl the SlicriH" or any Constable or ^ ' 

('i)iis(:il)les of tlu" Coiiiity wIktc siidi pcrsun shall Ik' dwelling,' or (irr'shi-rirf?*.'-'!^ 
iiihahit, and fmin wluMicf he sliall \>v coniniittt'd as aforesaid, or kik'IIjI! ''^7 p'a'y 
wliere he shall have any goods within llic County, to sell so much ^^^^j^ - 
of the goods and chattels of the person so to he conunittcd as 
shall satisfy and pay the charges of conveying and sending him 
to the said jail as aforesaid. 

Sec. 81. i^^'^oS.) 'J'hc appraisement of the goods and chattels Appniiwmrnt 
of such person so convicted shall be made by three freeholders, bowJudue^'ic*."' 
inhabitants of the said County where such goods or chattels shall lb. 

be (the said freeholders being first sworn to make a just and true 
appraisement of the same) ; and the Constable shall return the 
sum so by him levied to the County Treasurer, and the overplus 
of the money which shall be made on such levy shall be delivered 
to the party. 

Sec. 82. {JfJ-~>7.) Any sale of the goods and chattels made by sales of Roods, 
the person committed, as provided ])y Section 79 of this Chap- void.''^ ^'^^°^'^' 
ter, between the time of the commitment and the time of con- ^^' ' 

viction, in order to avoid the payment of the aforesaid charges, 
is herel)y declared to be null and void. 

Sec. 83. (2658.) When a prisoner shall be discharged by rea- Prisoner ac- 

» ,, J.J. 1 j> 11 J. 1 p quitted, freed 

son ot tJie non-attendance oi the prosecutor, or on account of a from costs. 

bill presented against him being rejected l)y the grand jury, or g ^g^^' ^"■' ^"^' 

by reason of an acquittal by the petit jury, such prisoner shall 

Tiot be bound or liable to pay any charges which may have been 

incurred in his apprehension, detention or prosecution. 

Sec. 84. {2659.) In all recognizances by any person for keep- Recognizancf« 

ing the peace, or good l)ehavior, or for appearing as a party, |,° |jj*e 'o°, {^| 

surety or witness, at any C-'ourt of criminal jurisdiction within ^'^'*- 
. . ^ 17K7, v., i:i, 61: 

the State, the sum or sums of money in which any such person lesa, xviii,4.5o. 

shall be bound shall be made payable to the State ; and every 

such recognizance shall be good and effectual in law, provided it 

l)e signed by every party thereto in the presence of a Judge, 

Clerk of a Court of Common Pleas, Trial Justice, or Notary 

Public, who shall sign the same as a witness. 

Authorizes Clerk to take recognizance under order of the Judge. — State v. 
Sattrnrhifr, 20 S. C, 540. 
Seal not necessary. — Statr v. Foot, 2 Mill. 1^5. 
Principal's duty to surety. — /{eifnolds v. IliirtuI, 2 Strob., 87. 
Obligation of surety is that jjrincipal shall ai)pear and abide judgint-nt — H>. 
In felonies the personal ai)i)earance is necessiiry.— .SVtj/*' v. Uoirv. s Rich., 17. 
Not invalid for mere irrej,'ularity.— /?». 
It cannot be executed by attorney.— iSVafc v. Ahn-ns, \2 Rich., 4'j:>. 

19 




THE CRIMINAL S'lATl TKS 



Sec. 85. {'2660.) Whenever siifli ri'co^^iii/aiicc shall hi-ciiiiic 
in'^nu-ii'^'f'fi'ii- forfeited by non-eoniplijince with the condition thereof, thi- 
cognizaiu-es.'^ *^" Att»irney-( JeuLM-al, or Solicitor, or other person acting,' foi- him, 
I7b7, v., 13, 81. shall, witlioiit delay, issue a notice tosiininion evei-y party Ixtimd 
in such forfeited recognizance to be and appear at the next ensu- 
ing Court of Sessions, to show cause, if any he has, why judg- 
ment should not l)e confirmed against him ; and if any person so 
bound fail to appear, or, a])|)earing, shall not give such reason 
for not performing the condition of sucli recognizance as the 
Court siiall deem sullicient, then the judgment on .such rec(»gniz- 
ance shall be confirmed. 

Court of General Sessions may estreat by scire facias.— State v. Wilder. Vi 
S. C, 344. Rule to show cau.se not appealable.— .SYci^- v. McNinch, i:i S. C, 
4.52. 

No lien on land until estre&ted.— State v. Morgan, 2 Bail.. fWi. 

Objections to validity of, too late after it has been estreated. — Burton v. 
Keith, 2 Hill. .5o~. 

Objection that paper, on its face, is not a recognizance, can be made ore 
temis.— State v. Ahrens, 12 S. C, 493. 

Invalid if it does not appear to have been taken by one authorized to take 
recognizance. — 76. 

Sureties liable notwithstanding discharge of prisoner by U. S. Judge.— State 
V. Davi.s. 12 S. C. .52S. 

Surety not estopped from disputing validity, because another party ha« 
made jmjnnent thereon. — State v. Briyht, 14 S. C, 7. 

May be estreated before trial where defendant fails to appear and plead.— 
State V. Minton, 11) S. C, 2S2. 

Execution to Sec. 86. {3661.) In every case where any such recognizance 
^tate^of offend- sIvaU be adjudged so forfeited, or where any fine shall l)e imposed 
ei"' *<^- _ by or recovered for the use of the State, in anv Court, or before 

Ih. •' ' 

a Trial Justice, if the party incurring such tine or forfeiture 
shall fail to pay down the same, with the costs of prosecution, 
then a writ, in the nature of an execution, shall issue, by virtue 
of which the Sherilf, or his deputy, shall sell (in the same 
manner as property is sold under execution in civil cases) so 
much of such oifender's estate, real or personal, as may be neces- 
sary to satisfy the fine or forfeiture, and also the costs of prose- 
cution, and also the reasonable charges of taking, keeping and 
selling such property, returning the overplus, if any, to the 
otTender, together with a bill of the fine or forfeiture, with costs 
and cliarges, if he require it. 
If amount not SeC. 87. {2662.) If the Sheriff, or his deputy, return on oath 
miiv%e^^om- ^'^''^ such otfeiulcr refused to pay. or has not any projierty, or not 
mitted to jail, suthcient whereon to levy, then a writ of capias ad satisfacicii- 
Jh, duin shall issue, whereby he shall be committed to the common 



OK Sol'I'II CAK'dl.lNA. ^87 

A. U. 1X!M. 

jiiil iiiilil I he forrfituri'. costs ;ui<l i-li;ir<r<'s shall he satisfied — ' '' ' 

I'litillcd, liowi'ViT, Id tlic |ii-ivil('i,fc of iiisolvciil (Icldors. 

Ihnsf V. .SV»/»ii((7.s-, •,".! S. ('.. ITC. 

Sec. 88. {■■''!'!■>.) if any |tcrs(»ii shall rorlVit a i-croirnizancc court may re- 
froni i^nioniiu'c or imavoi.lahk' ini).c(liiii(iit. aixl not rroiii willful 111 l-mLuM-lil!*': 
default, the Court of Sessions may, on allidavit statini,' the ^''•. '•». «-*• 
excuse or cause thereof, reinit the whole or any part of tiie for- 

reiliirc. as nia\- he dcciucd rcasonalile. 



CHAPTER VIII. 

Of the Writ of Habeas Corpus. 



Sec. 



no, 



Persons entitled to the benellt of this 
Chapter. 

Persons Indicted for treason or felony 
shall lie indicted the next term or let 
to bail. 

If not asked for two terms, &c. 
Judges to grant writ-s. 
Writs to be directed to whom. 
Sendee of writ. 

Prisoners to be brought up on payment 
of charges, &c. 

Time within which prisoner must be 
brought before Court. 
Proceedings upon healing of the re- 
turn. 



Sec. 
98. 



100, 
101, 



103. 
108. 



104 
10.5. 



100. 
107. 



Notice to be given to Attomey-(ien- 

eral, &c. 

Granting of writ.s during sessions of 

Court. 

After adjournment. 

Persons discharged not to be rear- 
rested. 

Two Trial Justices to grant writ. 

Penalty on oflBcers neglecting their 

duty. 

Penalties, how recovered. 

Persons not removed from one prison 

to another without cause. 

Penalty for signing warrants, ic. 

Appeals allowed. 



The protection intended by this Cliapter against unlawful confinoinent goes 
no farther than the enlargement of the prisoner on bail, if the offense be bail- 
able.— i7a/p V. Everett, Dud., 29.5. 

Section 89. (^''■>-'?.) If any person or persons shall be or stand ppr^^^n,. ^n. 

coDiiiiittrd or detained for any crime, unless for felony (the |,'f'','J^|J*|,,''J'"^,^' 

punisliniciit of wliicli is death i or treason, plainly expressed in -ii en. •-', c. 3; 
', ,11 '•• "^- '■■^'^- **•■' 

the warrant of commitment, or unless chari^fed as accessory and 21 ; is:fti.-i>, 

liefore the fact to treason or felony (the jnmishment of which sir. 

I'doiiy is death) or with suspicion thereof, or unless char»;etl 

with suspicion of treason or felony, (which felony is pnnisliahle 

with death.) which shall he plainly expressed in the warrant of 

commitment, they shall he entitled to the writ of habeas corpus. 

Sec. 90. (-^^'i^o.) If any person committed for treason or ivrw.ns .-.im- 

i. 1 1-1 1 • 11" I • ii L e •» mlittKl for ln'«- 

feloiiy. plainly and .specially expressed m tiie warrant 01 commit- son or f.iony 

1" • ' ,•■• • /. . ii , *:„,* 1. shall Ix- Indicted 

tneiit. upon Ins prayer or petition in open ( oiirt the tirst week the next tennor 
of the term to he hrouofht to his trial, shall not hi- indicted some ''YV/rs *'' 
time in the next term after such eonimitment, it shall and niav 



288 THE CRIMINAL STATUTES 

A. D. 1804. ■ 

""■ — V ' he lawful to and for the Judge of the Circuit Court, and he is 

liereby required, upon motion made in open Court the last day 
of the term, either by the prisoner or any one in his helialf, to 
set at liberty the prisoner upon bail, unless it appear to him, 
upon oath made, that the witnesses for the State could not be 
produced the same term ; and if any person committed as afore- 
said, upon his prayer or j)etition in open Court, the first week of 
the term, to be brought to his trial, shall not be indicted and 
tried the second term after his commitment, or upon his trial 
shall be acquitted, he shall be discharged from his imj)risonment. 

Prisoner not entitled to be set at liberty on bail when true bill was found 
against him for murder at the term during which he surrendered and 
demanded trial. — State v. Holmes, '.i Strob.. 272. 

Prisoner committed for felony and demanding in open Court, during the 
first week of the term next succeeding hLs commitment, that he be brought 
to trial, has the right to bail if not then indicted. — State v. Williams, ;i5 S. C, 
16. Such prisoner must be di.scharged hereunder, if not indicted and tried 
within two terms after hLs commitment.— 6Y«<f> v. Fasket, 5 Rich., 2.V; ; State 
V. Williams, ;35 S. C, 160. But he is not entitled to such bail, nor such dis- 
charge, unless it appear that he is in custody. — State v. Williams, :« S. C, 
160. And a person accused of forgery, and admitted to bail, is not entitled to 
his discharge from the prosecution at the secxjnd term.— State v. Bxiyct, 2 Bay, 
563. One tried at the first term for horse stealing and mistrial had, was not 
entitled to discharge upon continuance by State at second term.— State v. 
Spergin, 1 McC, 563. 

If not asked Scc. 91. (232Jf.) If any person shall have willfully neglected. 

ioT two terms, |^y ^|^g space of two whole terms after his imprisonment, to pray 

Jb., 84. a habeas corpus for his enlargement, such person so willfully 

neglecting shall not have any habeas corpus to be granted in vaca- 

tio7i time, in pursuance of this Chapter. 

Judges to grant Sgc. 92. (2325.) Any of the Judges of this State, in vacation 

writs, ic. ,. T J p i ' • p ., • - , 

"ibT, 118,13." "™6 and out ot term, upon view of the copy or coj)ies of the 

warrant or warrants of commitment and detainer, or otherwise, 
upon oath made that such copy or copies were denied to be given 
by the per.son or persons in whose custody the jirisoner or prison- 
ers is or are detained, are hereby authorized and required, upon 
request, made in writing, by such person or persons as are com- 
mitted as aforesaid, or any on his, her or their behalf, attested 
and subscribed by two witnesses who were present at the delivery 
of the same, to award and grant a writ of habeas corpus, under 
the seal of such Court whereof he shall be one of the Judges. 

But Circuit Judge cannot hear application for Iiaheas corpus out of his own 
Circuit without sanction of Chief Justice. — Bbr Parte Parker, 6 S. C, 472. 

Writs to be di- Scc. 93. (2326.) Such writ shall be directed to the officer or 
'jf^ officers in whose custody the party so committed or detained 



OK SOCni CAL'oMNA. 5>h!) 

A. IJ. I.VJI. 

shall l»t'. and sliall Itc rctunicil iiimuMliatcly, Itcforc the .Iiid^e ' < 
issiiiiiL;' I lie same. 

Sec. 94. (-'■''-''".) 'I'lic said writ shall i)c served iipnii I lie said K«Tvir»M.f wriu. 
ollieer, or left at the jail or prison with aiiv i>r the under ottieers, ^''^ "'•"'-'• 
under keepers, or deputy of the said ollieers or keepers. 

Sec. 95. ('■i'-'^'.) The said otlieer or ollieers, his or their itimoihth to u- 
uiuler ollieers, under keepers or deputies, shall, within three [Mi'jMnfnt o" 
days after the service thereof, upon payment or tender of the pnlUw." "' '^" 
charges of iiringing the said prisoner, (to be ascertained by the ^f^','-g|^"'''''^'^'-' 
.ludge or Court that awarded the same, and endorsed upon the 
said writ,) not exceeding ten cents j^er mile, and upon security 
given by his own bond to pay the charges of carrying back the 
prisoner, if he shall be renuindcd by the CouiJ; or Judge to which 
he shall be brought, and that he will not make any escape by the 
way, make return of such writ, and bring, or cause to be brought, 
the body of the party so eoniniitted or restrained, unto or before 
the .hulge or Court from whence the said writ shall issue, or unto 
and before such other persou or persons before whom the said 
writ is made returnable, according to the command thereof, and 
shall then certify the true cause of his detainer or imprisonment : 
Provided, however. That if any prisoner be not able to pay the 
said charges, the same shall be paid by the County wherein he is 
conHned : Provided, further, That if such jjrisoner shall be 
acquitted of the charge against him, or finally discharged on 
habeas corpus by the Judge or Court hearing the same, the ex- 
penses of the proceedings in habeas corpus shall be ])aid by the 
County in which the case is situated. 

Sec. 96. {'-■^'^0.) If the place of imprisonment of the said Time within 
party be beyond the distance of twenty miles from the place ,mistVbmiight 
where such Court is held, and not above one hundred miles, he — !"'*^""4^ 

1 b.. Ill, 9'i. 

shall be brought before the Court, or the person or persons be- 
fore whom the wa'it is returnable, within the space of ten days ; 
and if beyond the distance of one hundred miles, then within 
the space of twenty days after the delivery of such writ, and not 
longer. 

Sec. 97. i'-'oJ^K) If, upon a hearing, the party shall be en- i>n>o.^HiinKs 
titled to his discharge, then the Judge before whom he is brought tiu'''ri'i»rn "*' " 
shall, within two days after the party shall be brought before /''•."«. 83. 
him, diseiuirge the said prisoner from his imprisonment, taking 
his n'cognizance, with one or more surety or sureties, in any 
sum. aeeording to his discretion, having regard to the nature of 
the olfense, for his appearance in the Court of (ieiieral Sessions 



200 TTTK C'RIMINAI. STATl'TKS 

A. I). IHOI. 

' ■•- ' the toi'iii fiillowiiijj^, for siid) County whore the olTense was cotn- 

jnitted, or in the Court of such other County where the said 
offense is properly cognizable, as the case shall require, and then 
shall certify the said writ, with the return thereof, and the said 
recognizance or recognizances, into the said Court where such 
appearance is to be made ; but if no legal cause l)e shown for the 
imprisonment or restraint, the prisoner shall be discharged 
therefrom. 

Under this Chapter the Judf^e can neither let to bail nor discharge a uriti- 
oner committed lor an offense not bailable.— .SVf/Yc v. Evprett, Dud., 295. The 
Judge can only discharge on bail, not absolutely.— .S7a/r' v. Johph, '.i'2 S. C, S!. 
But independently of this Chapter the Judge may, at chambers, let to bail for 
any offense whatever, and in making up his judgment may look beyond the 
commitment. — State v. Hill, o Brev., 89 ; State v. Erereff, Dud., 'Jti.') ; State v. 
Arthur, 1 McM., -ioi'i. But party convicted of infamous crime cannot be 
bailed. — State v. Connor, 2 Bay, 'M. As to discretionary power to bail. — Stale 
V. Hill, 1 Tr. Con. Rep., 'M2 ; State v. Golden, 2 McC, 524. 

Sec. 98. {233 1.) When it appears, from the return of the 

given to Attor- writ or otherwise, that the party is imprisoned on a criminal 

ney- en era , c g^(3Q^ga^^jQ^^ \^^, shall not be discharged until sufficient notice has 

been given to the Attorney-Ceneral, or Circuit Solicitor, or 

other attorney acting for the State, that he may appear and 

object to such discharge, if he thinks fit. 

Sec. 99. {2332.) During the term of the Circuit Court for 

wri[duriif/ses- that County where any prisoner is detained, no person shall be 
slon of Court. t „ ., . ., -j. x- ? ? 

If, 1-.23, 8187 removed from the common jail upon any writ of habeas corpus 

granted in pursuance of this Chapter, but, upon any such writ, 

shall be brought before the Circuit Judge, in open Court, who 

is thereupon to do what to justice shall appertain. 

Sec 100. {2833.) After the Circuit Court adjourns anv per- 

After adjourn- * i . • t i, -x j? 7 7 "^ 1 

ment. son or persons detained may have a w'rit of habeas corpus accord- 

/ft., 122, §19. ^^g |.^ j.j^g direction and intention of this Chapter. 

Sec 101. (233Jl.) No person who shall be delivered or set at 
Persons (lis- *^^^' -..77 1 11 ^- t.- 1 

charf^ed not to hirire unou aiiv writ of habeas corpus shall, at anv time, be again 

b e re-arrested 01.^^ j " <^ 

Ac. [ imprisoned or committed for the same offense by any jierson or 

Jb., 119, §6. persons whatsoever, other than by the legal order and process of 
such Court wherein he shall be bound by recognizance to appear, 
or other Court having jurisdiction of the cause ; and if any other 
person or persons shall knowingly, contrary to this Chapter, 
recommit or im])rison. or knowingly procure or cause to be 
recommitted or imprisoned, for the same offense, or pretended 
offense, any person delivered or set at large, as aforesaid, or be 
knowingly aiding or assisting therein, then he or they shall for- 
feit to the prisoner or party grieved the sum of two thousand 



I 



OF SOUTH CAROLINA. -m 

" A. D. H'.tl. 

live IiimdnMl (Idll.irs, any rolorahle pretense or variation in the "^ 
wanaiit or warrants of coniniit incnt ni)tuitli.<tan(liii;r. to ho ro- 
cnvert'd as aroresaid. 

Sec. 102. (iiS'J/j.) Any two Trial .Justices are authorized and Two TriaiJus- 
ri'(|Uirt'(l to irrant fhr writ of lutbcas rorjnai xxa fully, olTef^tually writ* of /i«/*c<m 
and lawfully as may any .Indite of tho Court of Common IMeas 1712, Ti.T'Joo, 
and (General Sessions or .Justice of the Sui)reme Court of this go] '*"''*'" ' 
State, except in cases of felony the punishment for wliich is 
death or imprisonment for life, in which cases I'rial .luslices 
shall have no jurisdiction in applications for Itiihcds rt>r])iis. 

Two .Tiistire.s cannot admit a person to bail who is chiiri^ed with niuril< r in 
the warrant. —.S7(»^<' v. Arthur, 1 McM., -loti. 

May do so on charge of passing counterfeit money. — Burton v. Kiith, 2 
Hill, r.:!7. 

Two Tiial Justices may discharge absolutely liennuider.— .S7(/^' v. Jam's, 32 
S. C, 5S:S. 

If one of the two Justices refuse to .sign the wi-it, he is lial)le.— .1.s7if v. 
O'Drisroll, 2 Tr. Con. Rep.. (IDS. 

An ax>peal from an order made by two Trial Justices in haljeas vorjuis pro- 
ceedings must be to the Circuit Court and not directly to the Supreme Court. — 
State V. Duncan, 22 S. C, 89. 

Sec. 103. {33'36.) Every person whatsoever to whom any Penaityofoffl- 
power is given, either judicial or ministerial, hy this Chapter, tbeirduty. 
and which, by virtue hereof, he is required and commanded to irVti/uV. ioo'Ja! 
do, who shall willfully neglect, refuse, or omit to do the same, 
when the same shall be legally requested and demanded, accord- 
ing to the directions herein, and when the person or jiersons so 
requesting and demanding the same are legally entitled to request 
or demand by the provisions of this Chapter, then and in such 
case such person, whether magistrate or officer, willfully so refus- 
ing, neglecting or omitting what this Chapter requires and com- 
mands, for each such willful neglect, refusal, or omission, shall 
forfeit the sum of five hundred (oOU) dollars, and shall be there- 
after incapable of holding or executing his office. 

Sec. 104. {iiSS7.) The said penalties mav be recovered bv penaitips, how 

the pi'isoiuT (»r party grieved, his executors and administrators. /;,., n<i, gs. 

against such offender, his executors or administrators, by action 

in any Court of competent jurisdiction, wherein no pi'otection, 

privilege, injunction, or stay of prosecution, shall be admitted 

or allowed. 

Sec. 105. (-?'?-'?<^.) If anv iterson or i)ersons, citizens of this Prrsons not 

' ., , ■ . . , . n'liuivjHl from 

State, shall be committed to any prison, or m custody ot anyone pri.son to 

officer or otHcers whatsoever, for any criminal or supposed crimi- ounaus*'. 

nal matter, the said person shall not be removed from the said ^''•, •■-^', «"• 



292 THE CRIMINAL STATUTES 

A. 1). 1804. 

^"" — y~'^ prison and custody into tlie custody of any other oHicer or offi- 
cers unless it be by habeas corpus or some other legal writ ; or 
where the prisoner is delivered to the Constable or other inferior 
officer to carry such prisoner to some common jail ; or where any 
person is sent, according to law, to any common workhouse of 
correction ; or where the prisoner is removed from one i)lace 
or prison to another within the said County in order to his or 
her trial or discharge in due course of law ; or in case of sudden 
fire or infection, or other necessity ; or when brought into Court 
as a witness in some matter or cause as provided by law. 
Penalty for Sec. 106. {}-SS9.) If any person or persons shall, after such 

rante, Ac. '^^^' Commitment aforesaid, make out and sign or countersign any 
^^- warrant or warrants for such removal aforesaid, contrary to this 
Chapter, as well he that makes or signs or countersigns such 
warrant or warrants as the officer or officers that obey or execute 
the same, shall suffer and incur the pains and forfeitures men- 
tioned in Sections 101 and 103 of tliis Chajitcr. 
Appeals allow- Scc. 107. {^SJfO.) x\n appeal from all final decisions rendered 

^- on applications for writs of habeas corpus shall be allowed as is 

provided by law in civil actions. 



6P SOrTIT PAIJOMXA. 



TITLK II. 

CRIMES AM) MISDI'I.MI-IANOKS. 



;.Mt3 

A. U. IH'JI. 



Chaptkh 


IX 


('IIAI'TKH 


X 


('llAPTKK 


XI 


ClIAI'TIvK 


XII. 


('IIAI'TKK 


XIII 


CUl AFTER 


XIV 


CHAl'TEK 


XV 


Chapter 


XVI, 


Chapter 


XVII. 


Chai'Ti;i{ 


Will. 


Chapter 


XIX. 



Chapter 



XX.— 



Chapter XXI. — 

Chapter XXII. 

Chapter XX I II. 

Chapter XXIV. 

Chapter XXV. 

Chapter XXVI. 

Chapter XXVII.— 

Chapter XX \' I II. — 



Chapter XX iX. 

Chapter XXX. 
ClIAI'TKR XXXI. 
Chapter XXXII. 



OfffiLses Ayaiiisl I lie rrrsoii. 

OjJ'enscs Ayaiii.st l^nijurtji. 

Offenses Against PuhVw. Pulirn. 

Offenses A(/(iinsf J'vhiic Peace. 

Offenses AfjainsI Public Justice. 

Offenses A(/ains/ Chastity, Morality anil 
Decency. 

Offenses Ayaiiisl the Public llealtli. 

Offenses of Selliny Property Under Lien, 
Violation of Contracts, and Reyulation 
of Trade in Certain Cases, d:c. 

Foryery and Offenses Ayain&t the Cur- 
rency. 

Offenses by Certaiii Officers. 

Violations of Ihe Provisions Reyiilatiny 
lite Establishiini and, Repair iny of 
Hi yh ways. 

Offenses by Railroad Companies, their 
Ayents and Enijjloyees. 

Violation of the Laics Reyulatiny the 
Assessment and Collection of Taxes. 

liaslardy. 

Vayraney. 

Non-observance of the Lord's Day and the 
Disturbance of Reliyious Worship. 

Gambliny. 

Protection of Fish, Oysters, Animals, dr. 

Violation of Laws Reyulatiny the ^^ale of 
Spirituous Liquors. 

Violation of the License Laws by Insur- 
ance and Other Companies, Em tyrant 
Ayents, Owners of Shows, Persons 
Selliny Pistols, i(-c. 

Violation of the Law Concerniny Sailors, 
Emiyrants, dec. 

Cruelty to Animals. 

Miscethnieous Offienses. 

Felonies, Accessories, Aiders and A tut tors. 




THE CRIMINAL STATUTES 

CHAPTER IX. 

Offenses Against the Person. 



Kki.omks (.'aimtai.. 

Sec. 
108. Munlt'idctlneil. 
lO'.i. I'linisliiiii'nt. 
11(1. Killinp by stabbing, 4c. 
111. Death from obstriK'tlng railroad. 
Wi. Killinir by poison. 
li:i. Killintr iu a duel. j 

111. Riipe. 
115. Cariiiil knowledge of a woman child i 

under ten yeai-s. j 

110. Injuries withJu limits and death be- i 

yond limits of this State. [ 

11". Injuries beyond limits and death ] 

within limits of the State, 
lit). Where parties arc in different Coun- i 

ties. 
110. Where iujiu-y in one County and | 

death in another. 

Feloniks .vot Capital. 

120. Manslaughter. 

121. Attempt to poison. 

122. Causing abortion. 

123. Punishment for placing obstruction 
on railroads. 



124. Obstructing niilroud willi'>ut death 
ensuing. 

MiSDKMKASORS. 

125. Sending or accepting a ch-iUengc to 
Ught. 

126. Carrying or delivering challenge. 

127. I^rlnclpal or second compellable t<i 
give testimony. 

12S. Pei"sons engaged In duel may be used 

as witness. 
12;t. Carrying concealed weapons. 

130. Assault. &<•-, withc(mcealed weapons. 

131. Kidnapping sailors. 

132. Kidnapping minors. 
1*3. Ill treating children. 

134 Punishment for cruelty to children. 
13.5. Unskillful management of steam- 
boats, iSc. 
1.3(j. Willful neglect of railroad employe<is. 

137. Administering or advising means to 
cause abortion. 

138. Punishment for the use of certain 
means by women. 

139. As to testimony under the two pre- 
ceding Sections and Section 122. 



Feloxies Capital. 

Murder. 

Murder denned. Sectioil 108. {'-Vj-^-) Murder is the killing of any i)orson 
1712, II., 418. ^vith malice aforethought, either express or implied. 

This Section does not make murder a statutory' ofifense ; it is still a common 
law crime. — State v. Coleman, 8 S. C, '2:i7. 

Distinction between mtirder and manslaughter.— .SYrr^c v. Frrrjuson, '2 Hill, 
(il'.t. 

Upon trial for the greater ofifense defendant may be found guilty of the 
less. — State v. Gaffney, Ric«, iSl. 

Principals— 

All present aiding and abetting are.— State v. Fleij. 2 Brev., :ti8 ; State v. 
Crank\ 2 Bail., Wi. 

Mtirder may be committed as the result of some illegal act ; a fonninl design 
to take life is not necessary. — State v. Alexander, .'iO S. C, 74. 

State V. Merrhiian, :^4 S. C, 16. 

In attempting to commit felonious homicide, the killing of another is mur- 
der.-Slate V. Lerellr, 'M S. C, 120. 

Malice is a term of art imi)orting wickedne.ss and excluding a .iust cause or 
excuse. — State v. Doifj, 2 Rich., 17'.t. 

State V. Levelle, '.U S. C, l-'O. 



I 



OV SOC'I'II ('Alio LIN A. -i'.tr) 



If tlic Icilliiifj; iH provfd nn<l no more, t\u< liiw iinjdicsnmlire. — .SVd^' v. Joins, 
:.".! S. ('., :.'(ll ; Slilfr V. Ah:iiiitilri\ :M» S. C^.. T4. 

But wluTc all the facts arc i)n>vi'(l tlif jury must khv wlicthcr there was 
malice, and not imply it from the mere fact of killing. — Slalv v. Ahxandrr, !M) 
S. v., 74. The Stiite nui.st prove it.—Stati' v. Coleman, C. S. C, IW ; State v. 
Hoi)ki»n, l."i S. C, l.-)7 ; State v. Jones, :«.» H. C, 2()1. 

It may he presumed.— .S7<i/c v. Smith, ~ Htroh., 77. 

As from use of desuUy weapon. — State v. Sisson, '.'< Brev., .V.t ; Slate v. Fer- 
ijiison, -.i Hill, fUlt ; State v. Smitfi, :> Strob.. 77 : Stale v. Levelle, .A S. C, VM ; 
Stiite V. Jaeksou. :H\ S. C, ■1S7. 

Or from circumstaiici's showing :i depraved spirit.— .SVc/c v. Sniitli.'.i Strob., 
77. 

State V. Levelle, M S. C. 1 :.'(!. 

Where the killing was in a (Hiarrcl and eiiidimtci-. if tlie facts show that it 
aro.se out of his misconduct, malic c tni tlu' jiart of the defendant might be 
infeiTed.- 67f/^' v. Haniniond, .") Stroh., 101. 

Killim^ of another when shootiuf^ at one to make his horse throw him pre- 
sumes malice and is murder. — Slate v. Smith, 2 Strob., 77. 

Indictment — 

No trial without sufficient and valid indictment : acquittal upon an invalid 
one no bar to .second. — Stidi' v. h'ai/, Rice, 1. 

Sui-plus words may be rejected. — State v. Fley, 2 Brev., :!:iS ; stah- v. Hiaj- 
yins, \2 Rich., 402 ; State v. Coleman, 8 S. C, 241. 

Not vitiated by concludinfi; "against the peace and dif^nityof the same State 
aforesaid," instead of " af,'ainst the peace and dignity of the State," as pre- 
scrilied by the Constitutiim. — State v. liobinson, 27 S. C, (Jlo. 

Party entitled to demand and to have copy of, three days before trial. — State 
V. lVi)tnin(jha)n, 10 Rich., ;257. 

Too late to demand copy three days after aiTaigument and trial had com- 
menced. —6Ya^' V. Briijgs, 27 S. C, 80. 

Must state : 

That offense was committed in County where indictment is found. — Slate v. 
Font, 2 Brev., 487 ; State v. niakeney, 3^ S. C, 111. 

When deceased died with certainty.— .SYo^p v. Coleman, 8 S. C, 2:37. 

But it is alleged with sufficient certainty, if it appear by reference back to 
prior allegations.— 6'<a/<' v. Coleman, 8 S. C, 237 ; State v. Stewart, 20 S. C, 
12.5. 

That death ensued in consecjuence of the act of prisoner. — State v. Wim herh/, 
:5 McC, I'.IO. 

What it is necessary to state in indictment for muixler committed by a num- 
ber of persons engaged in a riot.— ■S7(f/<' v. Jeiilcins, 14 Rich., 215. 

Counts for murder charging A as principal with pistol and B as acc-e.ssory, 
and charging B as principal with knife and A aa acces.sory, properly joined.— 
State V. Xorton. 28 S. C, 572. 

Must state place of death of deceased, and failure to do so i-annot Ik' 
amended.— ^Vm^- v. lilaKene\i, :W S. C, 111. 

But sufficiently stated when, after stating time and i)hice of womiding, it 
charges that defendant did then and thi're feloniously, etc., kill and murder 
deceased.— >>7'(/c v. Iluijijins, 12 Rich., 402 ; State v. lilakeneij, :{;> S. ('., 111. 

Good, if sufficiently certain in all respects.— 67(i^' v. Tuniaye, 2 N. «& McC, 
15S ; State v. Freenain, 1 Sjm'it, (15 ; Slate v. (ireen.4 Strob., i:>:! ; Sl<tte v. 
Iliajijins, 12 Rich., 402. 

It need not charge those i)resent aiding and abi'tting as being there with 
malice. — State v. lialxm, 4 Rich., 2(10. 

What is sufficient description of wound.— State v. Crank, 2 Bail., t>ti. 



29G THE CRIMINAL STATUTES 

A. D18M. " 

As against principal and accomplice.— -S^a^p v. Noi-ton, 28 S. C, 572. 

Not necessarj' that it should state precise day or year of the alleged crime. — 
State V. Branham, 18 S. C. 880. 

Doubted whether Solicitor's signature to it is necessary.— 67a ^f- v. Coleman, 
8 S. C, 287. 

Venue— 

Motion for change of, can be made before bill found ; it may be made before 
issue joined ; but it is better that it should be made after issue joined. - Stair 
V. Addison, 2 S. C, :««. 

Notice thereof should be given to the Solicitor.—/?;. 

The jury may find the venue from the facts in evidence.— State v. Sweat, 10 
S. C, G25. 

Defense— 

Self-defense : 

Necessity to kill not a defense when defendant brought such necessity upon 
himself. -&'<o^<' v. Jacobs, 28 S. C, 2'J ; State v. Murrell, 83 S. C, Xi. 

It is made out when jury is satisfied that prisoner really believed, as a man 
of ordinary reason and firmness, that there was necessity to kill to save him- 
self from death or serious bodily harm ; it is not necessary to .show that there 
was no other means of escai>e.— State v. McGvcer, 18 S. C, 464 : State v. Tur- 
ner, 29 S. C, 44 ; State v. Jones, m S. C, 201 ; State v. Jackson, 82 S. C, 27 ,• 
State V. Wyse, :« S. C, 582 ; State v. Bodie, 33 S. C, 117 ; State v. Littlejohn, 
33 S. C, 599 ; State v. Merriman, :« S. C, 16. 

This may be shown by preponderance of testimony. — State v. AlerHmati, 'M 
S. C, 16 ; State v. Broivn, :i4 S. C, 41 ; State v. Summers, 86 S. C, 479. 

But a witness testifying as to all the circumstances cannot give his opinion 
as to whether the prisoner's life was in danger from the deceased.— 6Ya^e v. 
Summers, 86S. C, 479. 

But the bare fact that deceased was presenting a gun at defendant when he 
shot does not necessarily make the killing self-defense.— 6Yafe v. Bodie, S^i S. 
C, 117. 

Where deceased had some days before fired at prisoner and then threatened 
his life, it was not self-defense to kill unless deceased showed an intention to 
take his life.— -S^aff v. Jackson, 32 S. C, 27. 

Insanity : 

Moral insanity or acting under mere uncontrollable impulse is no defense.— 
State V. Alexander, 80 S. C, 74 ; State v. Lerelle, 84 S. C, 120. 

To be proved only by prei)onderance of the evidence ; not to be disproved 
beyond a reasonable doubt. — State v. Stark, 1 Strob., 479 ; State v. Paulk, 18 
S. C, 515 ; State v. Colemaii, 20 S. C, 441 ; State v. Bundy, 34 S. C, 4:39 ; State 
V. Alexander, ;iO S. C, 74. 

If there is reasonable doubt as to the capacity to commit the crime, the 
defendant must be acquitted. — State v. Coleman, 20 S. C, 441 ; State v. Bundy, 
24 S. C, 489. 

Volimtary drunkenness, of whatever degree, is no excuse for crime commit- 
ted under its influence. — State v. Bundy, 24 S. C, 489. 

Alibi : 
Not necessary that it should be proved bej'ond all reasonable doubt ; clear 
preponderance of testimony sufficient.— ^Yaff v. Jackson, 36 S. C, 4i^7. 

Ignorance of Law : 
A disturber of the peace cannot excuse himself from the charge of murder 
by showing ignorance of the authority, under the law, of the officer whom he 
killed, knowing him to be an of&c^r.— State v. Williams, 86 S. C, 493. 



OF SOUTH CAUULINA. 



"A niero threat l>y iiiK)thor to take; one's life, witli uothiuK more, docs not 
amount to a Hufflcient excuse for such an one to commit homicide."— .S'tote v. 
Howard, 25 S. C, 1!)7. 

Arraignment— 

Not necessary again after inistriul.— .SVa^' v. Stfuuirl, :,'(> S. ('., li">. 

Challenges— 

A ricfht of challenge is a right to reject, and not to select, a jnry.—Sfdtr v. 
Wisr, 7 Rich., 412 ; Statr v. Prater, 2(> S. C, I'.W ; Statr. v. Jacobs, :{0 H. C, i:il ; 
State V. Jackson, :« S. C, 27 ; State v. Campbell, :i5 S. C, 2«. 

But it is regarded as a sacred right never to be refused.— .SYaN- v. liriyyn, 27 
S. C.,80. 

In felonies the State may order jurors to stand a.side until the panel is ex- 
hausted. -Statr V. ^fcNinch, 12 S. C, '.t.5 : State v. Stejihens, Vi S. C, 'IS~. 

To one jury not to be refused in part because some of the challenges had 
been made to another jury exhausted by challenges of several prisoners. — 
State V. Brings, 27 S. C, 80. 

Reduction of number of peremptory challenges by statute does not affect 
Constitutional right of trial by jury.— ^fa^f v. Wyse, :^2 S. C, 45. 

A juror rejected because not indifferent to one of the prisoners is no ground 
for complaint by tlie others.— S'^ct^p v. Prater, 2(5 S. C, 1!»8. 

As to challenge to array. — State v. Merriman, 34 S. C, 16 ; State v. Toland, 
m S. C, 515. 

Evidence- 
As to motive. — State v. Posey, 4 Strob., 142 ; State v. Coleman, 20 S. C, 441. 

Of express malice makes the killing mnrder.— State v. Sisson. •> Brev., .59. 

Law presumes malice, but where all the facts come out the State must 
prove it— State v. Jones, 2!) S. C, 202. 

What declarations of deceased are admissible. — State v. Freeman, ISpeer, .57. 

"W hen defendant proves declarations of deceased looking to suicide, the State 
can j)rove reasons assigned by hita.— State v. Crank, 2 Bail., (Wi. 

Djing declarations are admissible.— <S^a/<' v. Ferguson, 2 Hill, filf) ; State v. 
Quick, 15 Rich., :^2 ; State v. McEvoy, !) S. C, 208 ; State v. Nance, 25 S. C, 
1()S. 

Those of one of two killed by poison admissible against defendant on trial 
for murder of the other. — State v. Terrill, 12 Rich., 321. 

Declarant must have no hope of life, and the circumstances of the death 
must he the subject of the declaration.— jS^o^*" v. McEvoy, '.» S. C, 212 ; State v. 
Washington, 13 S. C, 4.58 ; State v. Gill, 14 S. C, 415 ; State v. Johnson, 20 S. 
C, 1.52 ; State v. Jielton, 24 S. C, 185 ; State v. Nance, 25 S. C, ir.8 ; .SY„/(' v. 
Wyse, 32 S. C, 45 ; State v. Bradley, 'M S. C, 13fi. 

The fact that phy.sician did not think the declarant would die does not affect 
the testimony.- Slate v. Johnson, 2(1 S. C, 1.55. 

Declaration after wound, but not in face of death, not admissible.— S^o^- v. 
Bodie, 33 S. C, 117. 

As to Character : 

Good character may be considered hy jury.- Slate v. Barth, 25 S. ('., 175; 
State V. Brown, 'M S. C, 41. 

Not limited in its effect to doubtful cases. — State v. Barth. 25 S. ('., 175. 

Of general bad character, not admissible.— iS^a^c v. Smith, 12 Rich., 430; 
State V. Turner, 20 S. C, 34. 

Violence of character admissible if probably known to prisoneror there werq 




2!t8 TIIK CKI.Ml.NAI. STATCTES 

A. D. IS'Vl. 

^-' — V sufficient reasons to supiHJse that they were known to him.— Stdtt- v. Smith, IJ 

Rich.. 4:H) ; Sfafr v. Tunin; 21) S. C, -.'A. 

Even particular acts of violence known to the prisoner and reasonably con- 
nected in point ot time with the killing; may be shown.— .S7</^■ v. Smilfi. TJ 
Rich., r-'M. 

Heasonoblv Doubt : 

State miLst prove its case beyond a reasonable doubt.— State v. Senn, 32 S. 
C, :Jil2 ; Stdtr V. JSadie, ;W S. C, 117 ; State v. Metriman, :^4 S. C, K!. 

Defendant entitled to benefit of doubt upon the whole testimony.— .S7«^• v. 
iiorfiV, :WS. C, 117. 

But it must be a well founded doubt —State v. hodte, 'Si 8. C, 117. 
Special Defense : 

Must be proved by preponderance of testimony.— 67a //> v. Bodie, '.i3 S. C. 
117. 

Insauiti/ : 

Physicians cannot give their opinions as to insanity from the testimony 
given, but can do so on similar case stated.— .S7o/p v. Coleinan, '20 S. C, 441. 

Standard authors on the subject may be read to the jurj-. — III. 

Judge having fully instiiicted the jury as to the law of insanity and their 
duty to acquit the prisoner if insane when he committed the homicide, he did 
not err in refusing to instruct them that the Court was authorized to .send the 
prisoner to the Asylum if found by them to be non comjjos. — State v. Rubin- 
son, 27 S. C, 61.5. 

Circumstantial Evidence : 

Conviction on, is proper. But the circumstances should be proved to entire 
satisfaction of jurj-, and when established should point conclusively to the de- 
fendant as the guilty party, and must be inconsistent with any other reason- 
able hypothesis.— 6^«/<' v. Anderson, 20 S. C, 581 ; State v. Milling, 25 S. C, 
16. 

Confessions : 

Must be voluntary, not induced by fear or hope improperly excited.— -Sfa^- 
V. Howard, 'So S. C, r.l7 ; State v. Carson, m S. C, 524. 

Two prisoners being tried for the same murder, their separate written state- 
ments so far as charging each the other with the homicide without implicat- 
ing himself, was improperly received.— &Y«/t' v. Carson, o6 S. C. 524. 
Confidential Communications : 

Where an accomphce testifies as State's witness, his confidential communi- 
cations made by him to his attorney cannot be disclosed by the attorney as a 
witness. — State v. James. :'A S. C, 41t. 

While husband cannot be comi)elled to disclose the confidential communica- 
tions of his wife, yet having voluntarily told part of a communication he 
must disclose the whole. — State v. Turner, iHi S. C, 534. 
Expert Testimony : 

State v. Coleman, 20 S. C. 452 ; State v. Senn, 82 S. C, :«t2 : State v. Brad- 
ley, ;« S. C, V.r> ; State v. Milling, ^5 8. C, 16. 

Threats: 

Threat reasonably connected in point of time with the killing may be re- 
ceived.— /?/a^<» v. Smith, 12 Rich., 4oO ; State v. Jackson, .S2 S. C, 27 ; State v. 
Campbell, -.Vi^. C, 28. 

Unconimunicated threats sometimes competent.— SYa^' v. Bodie, :« S. C , 
117. 

One month before killing considered reasonable time. — ,S7(7/c v. Camjibell.'.V^ 
S. C, 2«.». 

But at the time of the homicide the deceased must have made some demon- 
stration of an intention to execute his threats. — State v. Jackson, 32 S. C, 27, 



OF SOl'I'll CAIJoLIXA. :l'M 

A. I). H'.U. 

Throats ivftvr htmiicidc luiil bud blotid botwocn prisdmr ami family uf , ' 

di'C'casi'd may be proved. —.^'^<^• v. .hi '/(•/•.sod, ;ir> S. ('., .")!l'.t. 
I'rixonrr an Witnrss: 

Subject to cross-examination like other witnes-scs.— .S7r(/c v. Mrnimtiii. :H S. 
('., IS ; Sf(tt<- V. Tunirr, :;() S. C. ^i-'A. 

Effect of good character considered.— .S'/a/c v. Kdirarils, \.', K. C, 'VJ. 

His diaracter may be imix-ached. — Sfufc v. MrrHiunn, 'M S. C, IM. 

His contrary statement to others may bo proved. — Stiih> v. Mrnimmt. .lA 
S. C, IS. 

Improper for Solicitor to comment on failure of defendant to testify, but not 
reviewable ; oiTor when Judge corrected the inference suggested.— iST/a^' v. 
Ifou-anI, :>5 S. C, 1117. 

Testimony at Coroner's inquest is inadmissible against the witness under a 
charge afterwards preferred against them of the murder of the deceased per- 
son. — Shiti- v. .SV'n>i, ;W S. C, o'.):i. 

Acts and declarations of conspiratoi*s.— .S7r(^' v. J<i>iii:s, :'A S. C, 40. 

Where only two of the riotei-s were indicted, proof that the fatal injury was 
inflicted by others of the rioters will sustain verdict against the Uvo.—Sfntr v. 
Jenkins, 14 Rich., 215. 

Wife of father competent on separate trial to testify against the son indicted 
with him.-5^^«^' v. Authonu, 1 McC, 2S5. 

So is wife of one not on trial competent witness against his accomplices.— 
State V. Drawdy, 14 Rich., S7. 

Trial - 

J\idge may i)ermit jury todisperseduring trial.— .S7((^^ v. liclrlicr, l:'. S. C.,4(). 

C< induct of : 
Argument of counsel is restricted by general rules under control of the trial 
Judge, but if improper statements are made by counsel in a law case they can 
be re\iewed in the Supreme Court only by appeal from some ruling of the 
Judge thereon. — State v. Turner, o6 S. C, 534. 
Postponement : 
Irregiilar to postpone trial to another week before another jury when first 
jury was exhausted.— 67a/c v. Briyfjs, 27 S. C, 80. 

Charge to Jury : 

Judge must not allow his opinion as to the facts of the case, either inadvert- 
ently, intentionally or otherwise, to reach the jury.— .SVfi/c v. ir/ziVc, 15 S. C, 
.Wl ; State v. Jenkins, 2\ S. C, 585 ; State V. Addy, 2S S. C, 4 ; State v. Nor- 
ton, 28 S. C, 572 ; State v. James, ol S. C, 281 ; State v. Williams, 31 S. C, 
2;!S ; Stale v. Wyse, 32 S. C, 45 ; State v. Milliwi, 35 S. C, Ki. 

As to what is a charge upon the facts.— S'/ff/c v. Summers, IS) S. C, ".15 ; State 
v. Atterlterry, l'.» S.,C., 5'.)7 ; State v. Jenkins, 21 S. C, 5S)() ; State v. James. 31 
S. C, 31S ; State v. MiUing, 35 S. C, Ki ; State v. Jackson, o« S. C, 487 ; State 
V. Tunier, 3fj S. C, 5:54. 

Generally Erroneous : To exclude from jury all questions of manslaughter.— 
State V. Kirkland, 14 Rich., 230 : State v. Jenkins, 21 S. C, 5{X) ; State v. Xor- 
Inn, 2S S. C, 572 : .S7«/r' v. Turner, 2'.l S. C, :i4 ; State v. Wyse. 32 S. C. 45. 

But if there be no testimony to raise the question of self defense or man- 
slaughter the Judge may so i-hnvfiv. — Stale v. S}immers, V.) S. C, *M ; Slate v. 
iVotur, 25 S. C. KW. 

But not material when verdict is "guilty of manslaughter."— ^■^(^• v. Jen- 
kins, 21 S. C. 5!W;. 

Also erroneous to instnict jury that prisoner was guilty if he knew right 
fT-(mi wrong, when insanity was not the only defense,— ^'/(/'c v. /.CM/K/z-f/, 32 
S. C, 201, 



300 THE CRIMINAL STATUTES 

A. D. IWJ. ■ 

"*- — N^ ' Also to charge that good character should have great weight.— 5<rt/r v. 

Broun ^ ;MS.C., 41. 

An omission to charge any particular proposition of law unless requested i^ 
not a reversible error when the principal is otherwise substantially charged. — 
State V. Andemon, 24 S.C, li:i : Staff v. Prater. ^C S. C, 198 ; State v. Tvmtr, 
29 S. C, :« ; State v. Murrell, :« S. C, m : State v. Milling. ;Vi S. C, 16. 

Or to instruct the jury in the precise terms in which a request is presented. — 
State V. Jaeobs, 2.S S. C, 2i». 

No error to tell jury when asked by them that prisoner could be recom- 
mended to mercy, or in failing to instruct them that such recommendation 
could not afifect sentence.— Sfa^p v. Gill, 14 S. C, 415 ; State v. Murrell, 3;i 
S. C, 83. 

Verdict— 

May be referred to such of several counts as are supported by the evidence. — 
State v. Crank. 2 Bail., m. 

Not inconsistent when it finds murder both by dro\\Tiing and by beating, 
charged in separate counts.- State v. Posey, 4 Strob., Wi. 

Some irregularity not suflBcient to annul it.— State v. Coleman, S S. C. 2:^7. 

Verdict against one under indictment against him and another jointly is 
good. — State v. Bradley. 9 Rich., KiO. 

Foreman may correct in open Court a mere informality in verdict just ren- 
dered.— S'fa^e V. Anderson. 24 S. C, 114. 

Prisoner may waive his right to be present at its rendition.— 6'faf*' v. Haines, 
36 S. C.,504. 

New Triai^ 

Power to grant, on questions of fact, lodged exclusively with the Circuit 
Judge.— State v. Nance, 25 S. C, 168 ; State v. Haines, 36 S. C, 504. 
Granted : 

For charge of Judge upon the facts. — -S^a^r v. Norton, 28 S. C, 572. 

Upon sufiEicient demand of copy of indictment not being complied with.— 
State v. Winningham, 10 Rich., 257. 

Ui)on refusal to allow prisoner to cross-examine a witness before he leaves 
the %t&Jid.— State v. McNineh, 12 S. C, 89. 

Upon newly-discovered testimony.— Sfaf? v. David, 14 S. C, 4;i2 ; State v. 
Nance, 25 S. C, 168. 

Supreme Court will not grant, where no errors of law are aHeged.— State v. 
Clark, 15 S. C, 407 ; State v. Nance, 25 S. C, 168. 

Not granted on part of State. — State v. Reilly, 2 Brev., 444 ; State v. Wright, 
3Brev.,421. 

Nor where there appears no reason to question sanity after fair trial.— Sto^r 
V. Stork, 1 Strob.. 479. 

Refused where jury might well have convicted upon thfe evidence.— S^o^p v. 
McLendon, 5 Strob., a5 ; State v. Prater. 26 S. C, 198. 

And where Judge's charge was humane. — State v. Hammond, 5 Strob., 91. 

And where guilt is clear, though no motive for the murder appears.- S^afe 
v. Whitman, 14 Rich., 113. 

No necessity for presence of prisoner at hearing of motion for new trial, 
unless he claims Cou.stitutional right of being heard in person. — State v. Jeff- 
coat, 20S. C, '■^i. 

Sentence— 

Failure to ask prisoner "if he has anything to say why judgment should not 
be pronounced on him "" is error, and he must be resentenced. — State v. Treze- 
vant, 20 S. C, 36:i ; State v. Jeffroat, 20 S. C, 3^. 

Appeal stays sentence. — State v. Prater, 27 S. C, 599. 



OF SOr'I'II CAROLINA. 301 

A. D. imi. 

Appeal doo3 not oponitc IIS .sK^ic/'M/'i/c'f.s of ; only stays its execution.— .*?^fl/e ""-""■ ,^~—^ 
V. Prater, 27 S. C., .V.H). 

Arrosti'd, when con\iction of murder is by a jurj' illoRally drawn.— .S7«^' v. 
Pratt, I') Rich., 47 ; State v. Jcnninyn, l.'i Rich., 42. 

But the objections to such irrogiilarity must be made before verdict.- .S'<a<e 
V. Colemau, H S. C, 241. 

But not because the indictment concludes against the statute.— S^o**" v. 
Coleman, S S. C, 287. 

Nor when it fails to allege the time of the offense when there is enough in it 
to notify when the offense was committed. — lb. 

Where Sniirenie Coiirt on motion in arrest of judgment orders a new trial, 
the second trial i.s on the same indictment. — Slate v. Stej)hens, \'i S. C, 287. 

Second Trial — 

Defendant proi)erlj' put on second trial when former conviction was simply 
rovei-sed by the Sujireme Court.— iSYa^f v. Stejiheim, Vi S. C, 2S.5 ; St(ttc v. 
Wyse, 88 S. C, 582. 

Constitution exempts fi"om second tritil only where there has been an 
jicquittid.- S^o^p V. Shirer, 20 S. C, 404 ; State v. Jenkins, 20 S. C, 353 ; State 
V. Prirjf/s:, 27 S. C, 80 ; State v. Wysc, 83 S. C, ."582. 

Jeopardy of life Aeiined.—Stafe v. McKee, 1 Bail., <551. 

No discharge for, because one panel of jurors was exhausted and trial ad- 
journed over until next week.— S^afe v. Briggs, 27 S. C, 80. 

Sec. 109. (--4'^-^) Whoever is guilty of murder sliall suffer Punishment. 
the punisliment of death. g\^' ^'^'•' ^'■"^• 

Sec. 110. {-400.) "Whoever shall stab or thrust any person Kiiiiiitrbystab- 
or persons that has not then any weapon drawn, or that has not j^^'n^ 507 go 
then first stricken the part}' whicli shall so stab or thrust, so as 
the person or persons so stabbed or thrust shall thereof die within 
the space of six months then next following, although it cannot 
l)e proved that the same was done of malice aforethought, yet 
the party so offending, and being thereof convicted, shall suffer 
death as in the case of willful murder : Provided, That nothing 
herein contained shall extend to any person who shall kill any 
))erson or persons in self defense, or by misfortune, or in any 
other manner than as aforesaid ; nor to any person who, in keep- 
ing and preserving the peace, shall chance to commit man- 
slaughter, so as the said manslaughter be not committed wit- 
tingly, willingly, and of purpose, under pretext and color of 
keeping the peace ; nor shall extend to any person who, in clias- 
tising or correcting his ciiild, shall, besides his or their intent 
and pur])ose, chance to commit manslaughter. 

Sec. 111. {^-ioO.) Where the death of anv liunian being Death f mm o»>- 

, „ 1 , ,• 1 I -11 1 11 strmting nifl- 

results irom any obstruction })laced upon a railroad as describeu miui. 

in Section 123 of this Chapter, the person placing or causing to i^'"'. xvii.. 101. 

be placed such obstruction or impediment on said railroad shall 

be adjudged guilty of murder and .shall suffer death. 




THE CRIMINAL STATUTES 



Killing hy Poison, 

Kiuiug by Sec. 112. {2V>7.) All willful killing Ijv poisoning of any 

poison. person shall be adjudged, taken and deemed willful murder, of 

malice prepense ; and the offender therein, his aiders, abettors, 

procurers and counselors, shall suffer death, as in other cases of 

■\villful murder. 

Killing in a Duel. 

Sec. 113. (-■i-'^S.) In case any person shall kill another in 

duel. an}' duel with a deadly weapon, or shall inflict a wound or wounds 

1880, XVII., 501. upon any person in any duel, so as the person so wounded shall 
thereof die within the space of six months then next following, 
such person so killing another, or so wounding any person whereby 
such person so wounded shall die as aforesaid, being thereof con- 
victed, shall suffer death, as in the case of willful murder. 

liajje. 

Sec. 114. {S4o9.) Whosoever shall ravish a woman, married, 
-^o^' r — 4*2". ruaid, or other, where she did not consent, either before or after, 
isuG, xivV, 175 1 and likewise where a man ravisheth a woman with force, although 

18<8, XVI , C31, ' *^ 

81. she consent after, he shall be deemed guilty of rape, and shall 

upon conviction suffer death by hanging, in the same form and 
manner as is now provided by law for willful murder : Provided, 
hoicever, That in each case where a prisoner is found guilty the 
jury may find a special verdict, recommending him to the mercy 
of the Court, whereupon the punishment shall be reduced to 
imprisonment in the Penitentiary with hard labor during the 
whole lifetime of the prisoner. 

Evidence — 

Deposition of injured party since deceased, made for warrant and in absence? 
of prisoner, not admissible.— SYn^r v. Hill, 2 Hill, fiOT. 

If defendant testifies in his own behalf, his general reputation for veracity 
may be assailed..— State v. Robertnon, 26 S. C, 117. 

Sec. 115. (2Jf60.) If any person shall unlawfully and carnally 

Carnal k-Dowi- know and abuse any woman child under the age of ten years, 

man child under every such uuhiAvful and carnal knowledge shall be felony, and 

1715, ii.,i98, §1. t^^G offender thereof, being duly convicted, shall suffer as for 

a rape. 



Place of Trial Where Death Results from Certain Injur ios. 

Injury within 

limits una death gec. 116. i^Jf^^l-) "When anv person shall be struck, wounded. 

beyond limits of ^^^ **w. \ -r / j i- 

this State. poisoiied, or otherwise injured or ill treated, within the limits of 
^ito.,xii., vA ^j^jg State, and shall die thereof beyond the limits of this State, 



OF SOUTH CAT^OTJXA. :m 

wlnt lii'i- oil the liitjh soas or elsewhcri', lliu person ko .slrikin;^, r^"^ 

wouiujiii^', |)oi.soiiiii«,', or otherwisu caiisintf death as aforesaid, 
hIuiII bo subject to indictineiit, trial and punislnnent in the 
County in which said stroke, wound, [)oisoning or other injury 
or ill treatment was eonnnitted, in all respects the same as if 
death had occurred in said County. 

Sec. 117. {'-'t'l'.) Where any person wilhin tiie limits of injury u-vi.mi 
tins ^tate siiall mllict an injury on any ])erson who at the wiuiin iiinitu of 
time said injury is inllicted is beyond the limits of this State, or ikvixii ^i 
where any person beyond the limits of this State shall inflict an *'• 
injury on any person at the time within the limits of this State, 
and such injury shall cause the death of the person injured, in 
either c<ise, the person causing such deatli shall be subject to be 
indicted, tried and punished : in the first case, in the County of 
this State where the person inflicting the injury was at the time 
when the same was inflicted ; and, in the second case, in the 
County in which it was received ; and the procedure and punish- 
ment shall be in all respects the same as if both parties were 
within the said County at the time said injury Avas inflicted, and 
the homicide had been in all respects completed in said County. 

Sec. 118. {2JfOS.) Whei-e an injury is inflicted by any person wiiere parties 

within the bounds of one County of this State on a person counties. 

within the bounds of another County, and death shall ensue ■^''••'^-3. «'i- 

therefrom, and the party dies within this State, indictment, trial 

and })unishnient shall be the same as if the homicide had been 

conijiiitted altogether within the Couuty where the party dies ; 

and where the party dies without the jurisdiction of this State, 

indictment, trial and ]ninishment shall be the same as if the 

homicide had been completed in the County where the injury 

causing death was received. 

Sec. 119. ('-4^4-) When an V person shall be struck, woundixl, Wi»w injun- 

... T ■ T T ' 1 . . '" "'"' County 

pcisoiu'd or otherwise injured in one County, and die thereot in "iki tieuui in 

. ... T i" p 11. nnoUier. 

anotiier, any inquisition or indictment thereon found by jurors ]!ski,xvii.,83o. 

of either County shall be as good and effectual in law as if the 

stroke. W(Kind, ])oisoning or other injury had been committed 

and done in the County where the party shall die. And the 

person guilty of such striking, wounding, poisoning or other 

injury, and every accessory thereto, either before or after the 

fact, shall lie tried in the County where such indictment shall be 

found, and, if convicted, punished in the same mode, manner 

and Injiii as if the deceased had suffered such striking, wound- 




THE CRIMINAL STATUTES 



ing, poisoning or other injury and death in the County where 

such indictment shall he found. 

This Section does not apply to homicides committed before its enactment. — 
Slate V. Sweat, 10 S. C, G'24. 

Feloxies Not Capital. 

Manslaughter. Sec. 120. {2^65.) Manslaughter, or the unlawful killing of 
^1869. XIV.. 175, anot;]ipr without malice, express or implied, shall he punishable 
by hard labor in the Penitentiary not exceeding thirty years nor 
less than two years. 

Manslaughter- 
DC^ 71 erf ; 

Is the taking the life of another in sudden heat and i)assion, under reason- 
able provocation, without premeditation or vaslioe.— State v. Ferguson, 2 Hill, 
619 ; State v. Smith, 10 Rich., 341 ; State v. Jacobs, 28 S. C, 29. 

The provocation must be such as to provoke a high degree of resentment, 
and ordinarily induce a great degree of violence when compared with those of 
a slight and trivial character from which a great degree of violence does not 
usually follow. — State v. Ferguson, 2 Hill, G19. 

No mere words, however insulting, can excuse the killing and reduce the 
defense to manslaughter. — State v. Jacobs, 28 S. C, 29 ; State v, Lerelle, :i4 S. 
C, 120. 

But no jwovocation, however grievous, will excuse from the crime of mur- 
der, where, from the weapons u.sed or the manner of assault, an intention to 
kill or do some bodily harm is manifest. — State v. Ferguson, 2 Hill. Ol'.t. 

"Whether the killing was under sudden heat and passion, or from a .settled, 
deliberate purpose, must be concluded by the jury upon the facts of the 
case.— State v. Ford, 1 Speer U>i ; State v. Wgse, 32 S. C, 4.5. 

Where the original provocation, given shortly before the killing, was then 
sufficient to reduce the killing to manslaughter, the jury must inquire, not 
whether the sxisjiension of reason under such sudden heat and pas.sion contin- 
ued down to the moment of the killing, but whether the prisoner did cool, or 
was there time, all the circmnstances being considered, for a man of ordinary 
reason to have cooled. — State v. McCants, 1 Speer, 381) ; State v. Jacobs, 28 S. 
C.,29. 

Any signs of deliberation or reflection would be evidence of cooling. — State 
V. McCants, 1 Speer, 38'J. 

Charge— 

If error to charge that defendants could not under certain circumstance.^ be 
convicted of man.slaughter only, not material when verdict was for man- 
slaughter. — State V. Jenkins, 21 S. C, .51KJ. 

Sentence— 

If error only in sentence, defendant is not entitled to new trial. — State v. 
Axdtman, 2S S. C, tiOl. 

Persons aiding and abetting in the commission of manslaughter are guilty 
of the criine.— State v. Putman, 18 S. C, 177. 



Attempt to 



Sec. 121. {pJfOfi.^ Whoever shall unlawfully and maliciously 
poison. " _ administer to, or cause to be taken bv, any person anv poison or 

1800 XII 83^ fc V -i * 

■' "■ other destructive thing, with intent to kill such person, every 



OF SOUTH CAIIOMNA. :iOr) 

A. I), i^;*.!!. 

such (ilTciulcr. ;iii<l cvcmt jxM'soii cDiiiisrliu;:, :ii(liii;^f or alM'ttin;^ " ■ ' 

siicli olTcudci', shall he ifuilly of rdoiiy, and sliall he ])iini.sht'<l by 

imprisoiuiu'iit in the IV'iiiteiitiary not exceeding ten year^ nor 

lesri than two years. 

This S'ction <1(h*i not siii)ci-sc<l(' tlio common law ofTense of aKsiiult and bat- 
tery with intent to kill ; and win n a ]i(^rson, with int«'nt to kill. adniinisterH 
to a little child a tbni;^ which ho lu'lievcd to ho iK)Lsonoun and of mifflcient 
quantity to d«'stn)y life, sui-h common law offenne i.s comi)lete, even thou^jh 
the dose is iusalKcicut for the piu-pose mtended.— .S'^/^c v. Glover, 27 S. C, GO'i. 

Sec. 122. Any person wlio sluill administer to any woman rau.sinK abor- 
■\vitli c'luld, or ])rescribe for any such woman, or suggest to or i3sj^xviu.,547 
advise or procure lier to take, any medicine, substance, drug or 
thing whatever, or wlio shall use or employ, or advise tlie use or 
employment of, any instrument or other means of force whatever, 
with intent thcrehy to cause or procure the miscarriage or abor- 
tion or premature labor of any such woman, unless the same 
shall have been necessary to preserve her life, or the life of such 
child, shall, in case the death of such child or such woman results 
in whole or in jiart therefrom, de deemed guilty of a felony, and 
upon conviction thereof shall be punished by imprisonment in puDishmem for 
tlie Penitentiary for a term not more than twenty years nor less 
than five years ; but no conviction shall be had under the pro- 
visions of this Section upon the uncorroborated evidence of such 
woman. 

Sec. 123. (lo^JO.) If any person or persons shall by himself punishment 
or others jilace, or cause to be placed, on the track or other part 'true iT olfs "(in 

of the passage way of any railroads on which steam engines or ^'ironcis. 

, r to J J « 1880. xvn., 1011. 

hand cars are used any timber, stone or other obstructions, with 

intent to injure or impede the passage of any cars or means of 

conveyance, or shall in any other manner obstruct any engine or 

car passing upon such railroad, or endanger the safety of persons 

conveyed in or upon the same, or aids or assists therein, such 

person or persons shall be deemed guilty of felony, and on being 

thereof convicted by due course of law shall be punished by im- 

])risonment in the Penitentiary not exceeding tliirty years, and 

lined in the discretion of the Court, except when the death of 

some human being results from sucli impetliment, and in tliat 

case the offender shall be deemed guilty of murder and shall 

suffer death. 

Sec. 124. {^-'■■'f'^'i'-) Anv person who sliall willfully and mali- oi.struc 1 1 n jr 

ciously place, or cause to be jjlaced, on the track or otlier part out tu-aih en- 

of the passage way of any railroads on which steam engines or """*''■ 

liainl c;\ys arc Ui^vd aiiv timber, sti)ne or obstruction with intent 



306 THE CRIMINAL STATUTES 

A. D. isai. ■ 

' ■< to injure or impede the passage of any cars or means of convey- 

ance shall be deemed guilty of felony, and on being convicted 
thereof shall be punished by imprisonment in the Penitentiary 
for not less than one nor more than thirty 3'ears, and fined in the 
discretion of the Court. 

Misdemeanors. 

Sending or ac- Sec. 125. {-^^68.) AVhoever shall challenge another to fight at 
leng e to Bg ht. sword, pistol, rapier, or any other deadly weapon, or who shall 
oOi!*^« rf Con.! accept any such challenge, shall for every such offense, on con- 
Art. I., 132. viction thereof, be deprived of the right of suffrage, and be dis- 
abled from holding any office of honor or trust whatever in this 
State, and shall be imprisoned in the Penitentiary for u term not 
exceeding two years, at the discretion of the Court. 

Indictment — 

Will lie in this State for challenge to fight a duel in Georgia.— S/a<€ v. 
Taylor, 3 Brev., 243 ; State v. Cunningham, 2 Speer. 246. 

Or for a verbal challenge.-S'fa^e v. Stnckland, 2 X. & McC, 181. 

Or against the principal who sends challenge or fights.— <S^afe v. Strickland, 
2 N. & McC. ISl ; State v. Dupoyit, 2 McC, SS-l. 

Or for any agreement to fight with loade<i pistols and actTially fighting. — 
State V. Heriot, 1 McM., 126. 

Sentence- 

The disability to hold cfiBce, imposed by the Section, does not constitute a 
part of the sentence. — State v. Dupont, 2 McC, 334. 

carryinjr or Ssc. 126. (-4^'-^-) Whoever shall willingly or knowingly 
lenge. carry or deliver any such challenge in writing, or verbally deliver 

o(ef§8. ^ ^ '^ ^" a^y message intended as or purporting to be such challenge, or 
who shall be present at the fighting of any duel as a second, or who 
shall aid or give countenance thereto, shall for every such offense, 
on conviction thereof, be forever disabled from holding any 
office of honor or trust in this State, and shall be imprisoned in 
the Penitentiary for a term not exceeding two years, at the dis- 
cretion of the Court, and shall be fined in a sum not less than 
five hundred dollars nor more than one thousand. 
Principal or Sec. 127. (2^70.) Upon the trial of all indictments for duel- 
abie°to giv^f^- ing. any person concerned therein, either as principal or second, 
"??J^*',r, ,.^ or as counseling, aiding and abetting in such duel, shall and 
may be compelled to give evidence against the person or persons 
actually indicted, without criminating himself or subjecting or 
making himself liable to any prosecution, penalty, forfeiture or 
punishment on account of his agency in such duel. 

Challengee may testify as to conversation between bearer of letter and him- 
self.— S(a<e V. Taylor, 3 Brev., 243. 



OF SOUTH CAUOLl.NA. 30: 

A. D. 1WI». 

Declaration of second admissible against principal.— .S'^<^• v. DuponI, '-' ^~- — / ' 

McC.,:;;{-l. 

Sec. 128. {■•''/'^^•) In every case wliere two or iiioi-e persons Person pn- 

1 II 1 1 1 • • T i. i (• i- I i- 11 1 • WJfwl Jn duel 

shall 1)0 cluir<i[t'(l lu any iiKlictnicnt ior ti<,Mitin;,' a duel or noin;^ muy iie ukm a» 
concerned therein, either of such persons may be used as a wit- /,^ — 

ness or witnesses in behalf of the State, by having liis or their 
names stricken out of the indictment, or otherwise, at the dis- 
cretion of tlie Attorney-Oeneral or Solicitor, or other attorney 
acting for the State, conducting such prosecution, of which an 
entry shall immediately be made on the minutes of the Court ; 
and in case any such person or persons so used as a witness or 
witnesses in behalf of the State in any prosecution for fighting 
a duel, or for being concerned therein, shall afterwards be in- 
dicted for the same offense, the fact of his or their being used 
as a witness or witnesses in the former prosecution for the same 
offense shall and may be pleaded in bar to such subsequent in- 
dictment, and on proof thereof by competent evidence such 
person or persons shall be thereof acquitted and discharged. 

Sec. 129. {'^'472.) Anypersoncarrying a pistol, dirk, dagger, ^^^;j;j>|n^^^ 
slungshot, metal knuckles, razor, or other deadly weapon usually im), xvii., 
used for the infliction of personal injury, concealed about his ' * ' 
person shall be guilty of a misdemeanor, and upon conviction 
thereof before a Court of competent jurisdiction shall forfeit to 
the County the weapon so carried concealed, and be fined in a 
sum not more than two hundred dollars or imprisoned not more 
than twelve months, or both, in the discretion of the Court. 
Xothing herein contained shall be construed to apply to peace 

officers while in the actual discharge of their duties as such ib.,6T. ' 

officers, or to persons carrying concealed weapons while upon 
their own premises. 

It is necessary to conviction tinder this Section for carrjnng a concealed 
pistol for the State to prove that it was concealed about the person. — State v. 
Johnson, Ifi S. C, 1S~. 

To prove that it was so concealed as to be generally hidden from ordinary 

observation completes the offense.— /?>. 

Assault. 4c.. 

Sec. 130. (2473.) if any i)erson be convicted of assault, at>- wliir'"*"**'^ 

sault and batterv, assault or assault and batterv with intent to , '*<^'; -Wii.. 

•Ho, 8 ■>. 

kill, or of manslaughter, and it shall appear upon the trial that 
the assault, assault and battery, assault or assault and battery 
with intent to kill, or manslaughter, shall have been committed 
with a deadly weapon of the charai-ter s])ecitied in the foregoing 
Section, carried concealed upDii the person of the defendant so 
convicted, the presiding -Judge shall, in addition to the punish- 



:^.08 THE CRIMINAL STATUTES 

A. n. isin. ~~ 

""■"^ -.^ ' moiit provided by law for .sucli assault, assault and battery, as- 
sault or assault and liattury with intent to kill, or nianslau^^ditcr, 
inflict further punislimunt upon the person so convicted, by con- 
tineraent in the Penitentiary for not less than three months nor 
more twelve months, with or without hard labor, or a fine of not 
less than tw<j liundred dollars, or both line and ini]irisonment, 
at the discretion of the said Judge. 

Undor indictment for assiiult with pi-sti)! vnth intent to kill, where jury find 
a verdict of "j^ilty of an aggravated assault and battery," the wordw "and 
battery " were stricken out as surplusage and the verdict was held good. — 
State v. Robinson, '.il S. C, 453. 

Kiiinapping Sec. 131. i^4'^4-) Any attempt by fraud or force to ship 
^isM^xii 402 against bis will any person as a seaman on board any vessel in any 
SI- port of this State is hereby declared a misdemeanor, to be pun- 

ished by fine and imprisonment, at the discretion of the Court. 
Kidnapping Sec. 132. {2475.) Any person who shall procure and carry 
itsn, xivTTsitn without the limits of the State any minor or person under the 
age of twenty-one years without the consent of the parent or 
guardian of such minor shall upon conviction thereof be fined 
in a sum not less than one hundred nor more than five hundred 
dollars or be imprisoned in the Penitentiary of the State for a 
period of not more than one year. 
Ill treating Sgc. 133. (2476.) Whoever, being legally liable, either as 
prentices? &c!^" parent, guardian, master or mistress, to provide for any child or 
j8-<4, XV., 704. children, apprentice or servant, idiot or helpless person, neces- 
sary food, clothing or lodging, shall willfully and without lawful 
excuse refuse or neglect to provide the same, or shall unlawfully 
and maliciously do, or cause to be done, any bodily harm to any 
such child or children, apprentice, servant, idiot, or helpless per- 
son, so that the life of such child or children, apprentice, serv- 
ant, idiot or helpless person shall be endangered, or the health or 
comfort of such child or children, apprentice, servant, idiot or 
helpless person shall have been, or is likely to be, permanently 
injured, shall be deemed guilty of a misdemeanor, and upon 
conviction thereof shall be liable to a fine of not less than two 
hundred dollars nor more than one thousand dollars or be im- 
prisoned for any term not exceeding two years, with or without 
hard labor, one or both, at the discretion of the Court. 
Punishment Scc. 134. Whoever tortures, torments, cruelly ill treats, or 
ihiuimr'^^ ^" whoever deprives of necessary sustenance or shelter, or whoever 
ib'jo, XXI., 3. inflicts unnecessary })ain or suffering upon any child, or whoever 
causes the same to be done, whether such person be the parent 
or guardian of such child, or have charge or custody of the same. 



OF SOUTH CAliULl.NA. 309 

A.D. 19W. 

Khali for every such offense be guilty of a niisdenicanor, and l)o ' ' 

punished by imprisonment in jail not exceeding thirty days or i''""Hy- 
by fine not exceeding one hundred dollars. That all of the pro- 
visions of Chapter XXX. in reference to the prevention of 
cruelty to animals be extended to the enforcement of this Secticm. 

Sec. 135. (^^77.) If any person within this Stjite shall suf- vmmM or 

. ,. ,. neRllKpnt man- 

fer miury to life or limb bv the e.vijldsion of anv ])oil('r of }i"<^''"""nt "' 

, ' ,-,11 " sl«'airiUini.M. 4c. 

steamboat, or by reason of the unskiilfulness, mismanagement or itsii, vi., .w. 
negligence of the })ers()n or jjcrsons having the charge or com- 
mand of the said boat, or her engine, or by reason of any defect 
in the said engine or boat, or by reason of the deficiency or want 
of any matter or thing necessary and proper for the management 
or seaworthiness of the said boat, the captain, master or other 
person having the command or charge of such boat shall for 
every such injury be deemed guilty of a misdemeanor, and on 
conviction shall be punished by fine or imprisonment, or both, at 
the discretion of the Court before which such conviction shall 
be had : Provided, howevei-, That nothing contained in this 
Section shall be so construed as to prevent the defendant from 
showing, on the trial, that the injury arose from unavoidable 
accident, or without fault on his part, and that this Section shall 
not in any manner be construed to restrict the liability of any 
person to be indicted, tried and punished under any law existing, wiiifui neglect 

Sec. 136. m7S.) Any engineer or conductor of any railroad ^o^^T"^ ^"' 
company in this State who shall willfully neglect to observe, or ^^~' ^"•< "**• 
shall willfully violate, any rule or regulation of the company to 
which such engineer or conductor may belong, whereby any per- 
son or persons shall sustain, or be in danger of sustaining, any 
bodily injury, such engineer or conductor shall be liable to be 
indicted for every such offense, and upon conviction thereof 
shall be fined two hundred dollars and be imprisoned not exceed- 
ing one year, at the discretion of the Judge before whom such case 
may be tried : Provided, Itowever, That nothingherein contained 
shall be so construed as to relievo such engineer or conductor from 
responsibility in ciiscs where tjic life i>f any ])erson is destroyed 
under the law as it now exists. 

Sec. 137. Any person who shall administer to any wuinan AtiminisHTini? 
with child, or prescribe or procure or provide for any such means to "cause 
woman, or advise or procure any such woman to take, any medi- -7^— jy,jj- 
cine, drug, substance or thing whatever, or shall use or employ'^"''*- 
or advise the use or employment of any instrument or other 
means of force whatever, with intent thereby to cause or pro- 



310 THE CRIMINAL STATUTES 

A. D. 180J. 



cure the miscarriage or abortion or jiremature labor of any sucli 
woman, shall upon conviction thereof be punished by imprison- 
ment in the Penitentiary for a term not more than five years or 
Punishment for by fine not more than five thousand dollars, or by such fine and 
imprisonment both, at the discretion of the Court ; but no con- 
be corroborated viction sluill be had under the provisions of this Section upon 

the uncorroborated evidence of such woman. 
Punishmentfor Scc. 138. Any Woman with child who shall apply to or solicit 
tain means by any physician, druggist or other person whomsoever any medi- 
Jb. 83. cine, drug, substance or thing whatever, or shall take or admin- 
ister the same, or shall submit to or perform upon herself any 
operation of any sort or character whatever, with intent thereby 
to cause or produce a miscarriage or abortion or premature labor, 
unless the- same shall have been necessary to preserve her life, or 
the life of such child, shall be deemed guilty of a misdemeanor, 
and upon conviction thereof shall be punished by imprisonment in 
the County jail or State Penitentiary for not more than two years 
or by fine not exceeding one thousand dollai's, or by such fine and 
imprisonment both, at the discretion of the Court. 
Astotestimony SgC. 139. In auy preliminary examination, and on any inquiry 
pretSiing Sec- before a grand jury, and on the trial of any indictment for 
tion^--s^*^ ^^" alleged offense under the two preceding Sections, or under Sec- 
ib., §4T tion 122 of this Chapter, no person shall be protected from testi- 
fying as a witness for the reason that the testimony of such 
witness Avould tend to criminate or disgrace such witness : Pro- 
ProTiso. t'ided, lioii'ever, That no testimony so given of a character tend- 
ing to criminate or disgrace such witness shall ever be used in 
evidence in any action, prosecution or proceeding, civil or crimi- 
nal, against such witness, or against his or her representatives, 
ciru^on^s^n "^^^ P^^^®^^^^^°^ under the above mentioned Sections shall be 
coramence. commenced within two years after the commission of the offense. 



OF SOUTU CAliULiXA. 



CHAPTER X. 
Offenses Against Property. 




SEC. 
140. 

i«. 

112. 
148. 

111. 

14.5. 
140. 
147. 
148. 
149. 
150. 

i;:i. 

150. 



153. 

154. 

15fi. 

156. 
157. 
158. 

150. 

ICO. 



Fklo.nies. 

Arson. 
Burglary. 

HoiLso linnklnp In dny timp. 
D'.vclUnjr limi-sc detlned In cnse of 
burglary and arson. 
Stpulinis' Ixinds, Ac. 
StcalliiK or letting loose boats. 
Stealing live stoe!;. 
Stealing bedding, Ac, from lodging. 
Stealing from the person. 
Restitution of stolen go(xIs. 
Breach of trust with fraudulent In- 
tent. 

Firing turpentine farms. 
Interfering with police alarms, &c. 

Misdemeanors. 

Entering house without breaking, 
with Intent to steal. 
Burning stacks of corn, Ac, In tlie 
night time. 

Burning stacks of com, Ac, In the 
day time. 

Burning carts, wood, Ac. 
Setting Qre to grass. 
Carrying Are on lands of another 
without permit. 

Burning and cutting frames of tim- 
ber and untenanted houses, Ac. 
Larceny of goods below twenty dol- 
lars. 



8EC. 

101. Buying and receiving stolen goods. 

102. Stealing melons and fruit from tho 
field. 

108, Obtaining property by false pre- 
tenses. 

1C4. Stealing grain or cotton from the 
field. 

'C5. Malicious Injury to horses, Ac. 

loo. Malicious injury to trees, houses, Ac. 

107. Prosecutor cannot have both criminal 
and civil a<tlon. 

ICS. Marking and branding larger ani- 
mals. 

1C9. Marking and branding smaller ani- 
mals. 

170. Using stock without owner's consent. 

171. Removing, destroying or leaving 
down fences. 

172. Rescuing trespassing stock. 
17?. Traveling outside of road. 

174. Injuring, ch